Contesting a Will: What You Need To Know

Definition of Contesting a WillDefinition of Contesting a Will

Key Takeaways

  • Contesting a will is a legal challenge to the validity of a deceased person's last will and testament.
  • Only individuals with a financial interest in the estate typically have the legal Standing to contest a will.
  • Common reasons for contesting a will include lack of testamentary capacity, undue influence, fraud and improper execution.
  • The process of contesting a will involves specific legal steps and strict time limits.
  • Successfully contesting a will can result in invalidating the entire will or specific provisions.

What Does It Mean To Contest A Will?

Contesting a will is a legal challenge to the validity of a deceased person's last will and testament. When someone contests a will, they argue that it does not accurately reflect the testator's (the person who made the will) real intentions or that it was created under invalid circumstances.

Who Can Contest A Will?

Understanding the grounds for contesting a will is crucial for those who feel they were unfairly omitted or disadvantaged by the document. Generally, only individuals with a financial interest in the deceased person's estate have the legal right to contest a will. This typically includes:

  • Beneficiaries named in a previous will: If a later will disinherits someone or significantly reduces their inheritance share compared to any prior will, they may have grounds to contest.
  • Heirs-at-law: These are close relatives (spouse, children, parents, siblings, etc.) who would have inherited a portion of the estate under state intestacy laws if the person had died without a will.
  • Dependents: In some cases, individuals financially dependent on the deceased person might have standing to contest the will. 

Important Considerations

  • State-specific rules: The exact rules for who can contest a will vary by state. Consult with an estate planning attorney in your jurisdiction for precise details.
  • No interest, no standing: If you were not included in the current will and would not have received anything even if the person had died without a will, you likely won't have standing to contest.

Legal Standing Explained

To effectively contest a will, one must first demonstrate legal standing, which requires showing a direct financial interest in the outcome of the estate distribution. Standing refers to an individual's entitlement to initiate legal proceedings based on their connection to the matter.

In the context of a will, only an interested party—typically a beneficiary or someone who could inherit under an earlier will or state intestacy laws—has the legal rights necessary to challenge the document's validity.

A party's eligibility to contest a will is firmly grounded in the tangible impact on their financial interests and legal rights within the estate.

A valid reason for contesting must be present, ranging from improper document execution to substantive claims of fraud, forgery or elder abuse. However, personal feelings of unfairness are not considered a valid challenge.

If you believe you may have grounds to contest a will, it's crucial to speak with an experienced estate planning attorney as soon as possible. They will assess your situation, determine your legal standing, and advise you on the best course of action.

Start Planning for Tomorrow

Start Planning for Tomorrow

Take the first step towards a secure future with our free will creation service from Fabric by Gerber Life.4 It's quick, easy, and absolutely free.

A will can be contested on several legal grounds. Understanding these grounds can help determine if you have a valid legal reason to contest the will.

Testamentary Capacity

Understanding testamentary capacity is crucial, as it defines a person's mental ability to create or amend a will. This ensures that the individual makes decisions without compulsion and with a full grasp of their estate's implications.

Testamentary capacity is a legal construct that signifies a testator's competency to execute a legal document, like a will, which delineates the disposition of their property upon death.

To possess the capacity to create a valid will, the testator must be of sound mind, which primarily involves comprehending the nature of the act, the extent of their property, and recognizing the beneficiaries of their estate.

When signing the will, the individual's mental state is the litmus test for establishing testamentary capacity. The presence of cognitive impairments, delusions or severe mental illness can compromise this capacity, rendering the will vulnerable to challenges.

If an individual lacked the capacity at the time, parties with legal standing can contest the will. Contestants must typically provide clear and convincing evidence of the testator's lack of capacity to sway the probate court's decision.

Undue Influence

While testamentary capacity is a fundamental requirement for a valid will, undue influence is another serious concern that may raise questions about the authenticity of a testator's final wishes.

Undue influence occurs when the testator is excessively persuaded, often covertly, by an individual to make decisions that drastically alter their estate plan. This manipulation can be grounds for contesting a will, particularly when the testator's capacity may be compromised.

Signs of Undue Influence: 

  • A will that deviates significantly from the testator's known intentions or prior drafts. 
  • Disproportionate benefits to one individual, especially if that person was in a position of trust or power over the testator.

Validity of Will Execution

Ensuring the proper execution of a will is paramount, as it forms the legal foundation upon which its validity is assessed. A probate court's role is to confirm that a will meets the requisite legal standards before it is used to distribute a decedent's estate.

For a will to be considered valid, specific criteria must be met at the time of its execution. The individual who signed the will must have done so voluntarily, without undue influence, and with the mental capacity to understand the document's implications.

Fraud & Forgery Concerns

Building upon the importance of proper will execution, it is equally critical to address concerns of fraud and forgery, which pose significant threats to the integrity of estate distribution. When fraud and forgery concerns arise, they often manifest in two primary ways:

Creation or Alteration of a Will:

  • Deceptive practices to produce a document not reflective of the testator's true intentions.
  • False representations that mislead the testator or beneficiaries.

Execution of Legal Documents:

  • Forged signatures purporting to be that of the testator.
  • Documents signed under duress or through manipulation.

To contest a will on grounds of fraud or forgery, one must present compelling evidence to the probate courts. This typically requires a detailed investigation of the will's creation and the circumstances under which the testator signed it.

Important Considerations

  • Burden of proof: The person contesting the will bears the burden of proving that one or more of these grounds apply.
  • State variations: Specific laws governing will contests can vary between states.
  • No-Contest Clause Implications

    A no-contest clause is a provision that aims to deter beneficiaries from contesting the validity of a will. Including a no-contest clause can serve as a proactive measure to help ensure the testator's wishes are carried out smoothly. The implications of a no-contest clause are potentially impactful and multifaceted.

    Financial Considerations:

    • Contesting a will can entail substantial legal fees, which may outweigh potential gains even if the challenge is successful.
    • A no-contest clause may force would-be challengers to carefully assess the financial risks associated with contesting a will, as contesting a will poses the risk of complete disinheritance should they fail.

    Interpersonal Dynamics:

    • Personal relationships among heirs and beneficiaries can suffer, as contesting a will might be seen as an affront to the decedent's final wishes.
    • Will contest attorneys often have to navigate these sensitive dynamics while advising clients on the merits of a potential challenge.

    Upon an individual's death being legally recognized, the probate process commences, and the will is admitted to probate. During this phase, the no-contest clause may become particularly important, as estate assets are at stake, and any third party considering involvement must weigh the risks of additional financial and personal impact against their claim's validity.

    What Is The Process To Contest A Will?

    Contesting a will is a complex legal process that typically involves several key steps. While the specific procedures can vary by jurisdiction due to differences in state laws, the general process to contest a will usually includes the following time-sensitive steps:

    1. Determine Standing

    First, you must ensure you have the standing to contest the will. This means proving you have a direct financial interest in the outcome of the estate distribution that the will dictates.

    2. Obtain a Copy of the Will

    You need to review the will in question. This may involve requesting a copy from the probate court where the will has been submitted for probate.

    3. Grounds for Contest

    Identify and establish the grounds on which you are contesting the will. Common grounds include lack of testamentary capacity, undue influence, fraud, improper execution, the existence of a more recent will or revocation.

    4. Hire an Estate Planning Lawyer

    Given the complexity of will contests, hiring a probate lawyer with experience in probate or estate litigation is advisable. An attorney can help navigate the legal system, gather necessary evidence and represent you in court.

    5. File a Contest in Probate Court

    You must file a petition or complaint with the probate court to start the will contest process officially. This document should outline your relationship to the decedent (the person who has died), your interest in the estate, the grounds for your challenge and what you seek to achieve by contesting the will.

    6. Notify Interested Parties

    The probate court usually requires that all interested parties be notified of the will contest. Interested parties typically include all named beneficiaries of the contested will, beneficiaries of any prior wills and any heirs at law.

    7. Discovery Phase

    During discovery, both sides gather evidence to support their positions. This may involve depositions, requesting documents and obtaining expert testimony, especially in cases involving questions of mental capacity or allegations of undue influence.

    8. Mediation or Settlement Talks

    Often, will contests are settled out of court through mediation or settlement talks. This can save time, reduce costs and avoid the unpredictability of a trial.

    9. Trial

    If the case does not settle, it proceeds to trial, where a judge (and sometimes a jury, depending on jurisdiction) will hear evidence from both sides. Witnesses might include family members, medical experts and anyone who can provide relevant information about the decedent's intentions and state of mind.

    10. Judgment & Appeal

    The court issues a judgment after the trial, which may validate the will, invalidate the entire will or invalidate specific will provisions. Any party disagreeing with the judgment has the right to appeal. However, appeals must be based on arguments that the trial was conducted improperly or that the law was not applied correctly.


    It's crucial to act within the time limits set by law, which vary by jurisdiction. These time limits can be quite short, sometimes as brief as a few months from when the will is admitted to probate.

    Given the emotional and financial stakes involved, contesting a will can be stressful and complicated. Professional legal advice is highly recommended to navigate probate law's intricacies and increase the chances of a favorable outcome.

    What Happens if a Will Contest Is Successful

    The results of a successful will contest depend on the specific grounds on which the challenge was upheld and the laws of your state:

    Will Declared Completely Invalid

    • If the judge/jury finds the entire will invalid, the estate will be distributed according to your state's intestacy laws. This means the deceased's assets will pass to their closest relatives (spouse, children, parents, etc.) based on a predetermined formula.
    • If a previous valid will exists, it might be brought forward and used to distribute the estate.

    Specific Provisions Invalidated

    • Those specific provisions may be voided if only certain parts of the will are deemed invalid (e.g., due to undue influence on just one beneficiary). The remaining valid portions of the will would still be upheld.
    • In this case, the invalidated portion of the estate may be distributed as if the person whose bequest was contested had predeceased the testator. This often results in those assets passing under the will's residuary clause (which bequeaths anything not specifically allocated) or under state intestacy laws.

    Settlement Agreement

    • In many cases, parties involved in a will contest reach a settlement agreement before going to trial or even during the process.
    • A settlement allows for more flexibility and control over how the estate is distributed than having a judge impose a decision.

    Important Considerations:

    • The complexity of outcomes: Each contest presents unique circumstances, making it hard to predict the exact outcome if it's successful.
    • Contesting doesn't equal inheritance: Successfully contesting a will doesn't necessarily guarantee you will inherit. Other potential factors, like older wills or state intestacy laws, may control who ultimately receives assets.
    • Attorney guidance is crucial: The consequences of a successful will contest are legally complex. Working with an experienced estate planning attorney is essential for understanding the possible implications of your specific case.


    Contesting a will is a complex legal procedure with significant implications. Understanding the potential outcomes and the associated costs will help you make an informed decision. If you believe you have a strong case, consulting with an experienced estate planning attorney is vital to protect your interests.


    1. Will Contest. Cornell Law School - Legal Information Institute.
    2. How To Contest A Will and When You Should. Legal Zoom.
    3. Contesting A Will. Nolo - Legal Encylopedia.
    4. Free Will from fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies.

    Related Wills Articles


    Information provided is general and educational in nature, and all products or services discussed may not be provided by Western & Southern Financial Group or its member companies (“the Company”). The information is not intended to be, and should not be construed as, legal or tax advice. The Company does not provide legal or tax advice. Laws of a specific state or laws relevant to a particular situation may affect the applicability, accuracy, or completeness of this information. Federal and state laws and regulations are complex and are subject to change. The Company makes no warranties with regard to the information or results obtained by its use. The Company disclaims any liability arising out of your use of, or reliance on, the information. Consult an attorney or tax advisor regarding your specific legal or tax situation.