Or, suppose your elderly father remarried just months before his death and altered his will to leave the entirety of his estate to his new spouse. This alteration of his will effectively disinherited you and your siblings, the primary estate beneficiaries of his previous will. You believe your father’s surviving spouse exerted undue influence on your father to cause him to make these sweeping changes to his will. Can a will be contested on these grounds?
These two scenarios present common fact patterns in trust and will contests. In the former scenario, it’s possible your sibling manipulated your grandmother into leaving him her home. In the latter scenario, it’s possible the pressure your father’s surviving spouse applied on him when was vulnerable due to old age may have driven him to execute a codicil (i.e., an amendment to a will) that disinherited his children, who he had always intended to be the primary beneficiaries of his estate.
Even if the facts surrounding a decedent’s will raise legitimate doubts about the validity of the document, whether you have the ability to contest the will depend on a number of variables, which we’ll discuss in this article.
If you are wondering whether a specific will can be contested, it would be ideal for you to discuss the details of your case with a will dispute attorney. Remember, there are strict time limits for contesting a will, so if you intend to bring a contest, it is critical that you take action within a couple months of the probate process starting.
Rules for Contesting a Will
Can a will be contested if you only wish to contest certain provisions? Can you contest a will’s codicil without contesting the underlying will? Can you fight a will in court if you do not have proof to back up your claim that it was procured through elder financial abuse? Can a will be contested if you are not a beneficiary or heir? Can you fight a will without involving the courts? Can you dispute a will after distributions have already been made?
These are all very important questions to be asking if you are considering challenging the validity of a will. Let’s start with the basics first.
A will contest is a type of petition that is filed as part of a court proceeding in which the validity of a decedent’s will is brought under scrutiny. Perhaps the decedent’s will does not reflect what their family knew to be their final intentions. Perhaps the will leaves a sizable gift to the drafter of the will — a situation in which the court generally presumes undue influence. Or, perhaps the decedent executed their will at a time when they were believed to be mentally incompetent.
When deciding whether a particular will can be contested, you must first consider your motive. Are you looking to contest the will because you are disappointed by how small your share of the estate is, or is it because you have evidence to show the terms of the will contradict the decedent’s true wishes?
Whether you can contest a will generally comes down to two variables: standing and grounds. We will go into the meaning of both terms in the following subsections.
What Is “Standing” in Will Contests?
Whether or not you can contest a will depends on whether you have what is known as “standing” — i.e., a financial stake in the outcome of the contest.
In order to have standing to file a will contest, the will you are seeking to contest must provide you with less than what you would receive if the will were set aside. In other words, if the will being invalidated would mean that you receive more from the estate, you have standing. On the other hand, if you stand to receive more under the will you are seeking to contest, or if you stand to receive nothing if the will were set aside, you would not have standing to contest the will.
Suppose you were close with a decedent, so when they fell ill due to old age, you cared for them and helped them manage essential aspects of their life. The decedent’s family members, on the other hand, were nowhere to be found. You were certain the decedent would leave you a gift in their will, but when you read the will, your name was missing from it. It baffled you why the decedent would exclude you from their will, opting instead to leave their assets to their estranged family members. Can a will be contested in this scenario? The answer to this question would probably be no. Let us explain.
When someone dies without a will, their assets pass to their heirs by way of intestate succession. Heirs generally consist of the decedent’s closest family members, which may include their surviving spouse, children, parents, siblings, etc. In the aforementioned scenario, if the decedent had only one will, and that will were to be voided as the result of a successful will contest, the decedent’s assets would pass to their heirs.
Intestate succession laws don’t allow much room for interpretation, nor can they be contested. Therefore, you, as a friend of the decedent with no familial ties to them, would not have standing to contest the will. The only scenario in which you may be able to contest the will would be if the decedent had executed a prior will that did leave you a beneficial interest in their estate — this would give you standing to the contest the will, since your share of the estate would increase if the new will were to be set aside.
What Are Grounds for Contesting a Will?
Suppose you are a beneficiary of your uncle’s estate, but so is your sibling, who, unlike you, failed to keep in touch with your uncle or help him during his final years. You find it unfair that your uncle left you and your sibling equal shares of his estate when you clearly did more for him. Can you fight a will on these grounds?
The short answer is no. Unless you can prove your sibling engaged in unethical behavior (e.g., undue influence or fraud) to convince your grandfather to leave her a greater share of his estate, the will cannot be contested. In other words, bringing a will contest because you find the document’s provisions to be unfair, or because you believe you’re deserving of a larger inheritance, would not qualify as a valid grounds for contesting a will.
Valid grounds for contesting a will include:
- Undue Influence: Excessive persuasion was used to compel the decedent to make drastic changes to their estate plan.
- Lack of Capacity: The decedent had lacked the requisite mental capacity to create a will.
- Elder Abuse: Financial, psychological or physical abuse had been perpetrated against the decedent, which played a role in their signing of a new will or codicil.
- Fraud: The decedent had been deceived into changing or executing their will.
- Forgery: A will or codicil had been fraudulently signed by someone other than the decedent.
- Lack of Due Execution: The decedent had not followed the proper procedures when executing their will.
- Mistake: The decedent executed a will by mistake, believing it to be another type of document.
- Revocation: The decedent revoked their will by executing a new will, modifying their old will or outright destroying their will.
If your reason for contesting a will falls outside the aforementioned parameters, it’s unlikely you will be able to contest the will. Nevertheless, before making a determination, it would be ideal for you to consult with an experienced estate and trust attorney about the merits of your case.
Can I Contest a Will in Its Entirety?
Yes, it is possible to contest an entire will. In many instances, it is the only proper course of action. If, for example, the decedent had lacked the capacity to create and sign a will when they visited their estate planner, the whole document should be voided.
Of course, the court will not take your word for it. Documentation from the decedent’s physicians and testimony from persons close to the testator (i.e., the creator of the will) will generally be required.
Can You Dispute a Will Amendment?
Yes, amendments to a will (called codicils) can be contested. A codicil is a separate legal document that usually is executed at some point after the creation of the original will.
It is entirely possible a decedent executed their will when they had capacity and thereafter executed codicils in an altered mental state or while subject to undue influence that materially altered the dispositive provisions of their underlying will. In this case, it would make sense to just contest the codicils, not the underlying will.
What Happens to Estate Assets After a Successful Will Contest?
If you contest a will and win, the decedent’s assets will generally pass according to the provisions set forth by their prior estate planning documents, if they had any that were valid.
If the decedent had no prior estate planning documents that were valid, their assets generally will pass to their heirs by way of intestate succession. Usually, those who inherit through intestate succession are the surviving spouse and children of the decedent. If the decedent did not have a spouse or children, their siblings and parents would be given priority.
What Are the Differences Between Contesting a Will and Contesting a Trust?
As previously mentioned, a will can be set aside if a court finds the document had been executed during a time when the decedent had lacked capacity, or if the will was procured as a result of foul play or by mistake. The grounds for contesting a trust are virtually identical to those for contesting a will, with one rare exception, which we will discuss below.
Contesting a Will/Trust on the Basis of Mistake
The conditions which must be met to set aside a trust due to mistake are substantially less rigid than the conditions that must be met to set aside a will for the same reason. A trust can be rescinded based on any substantial mistake of law or fact related to its execution, while a will can only be rescinded based on mistake if the decedent was mistaken about the document they were signing. In other words, they thought they were executing another type of document, such as a power of attorney, when they were actually executing a will.
For example, Keystone represented a client who was competent in her everyday life but had been drugged by her son and manipulated into executing a type of irrevocable trust known as a Qualified Personal Residence Trust, which named her financially abusive son as sole trustee and eventually would end up holding her primary income-producing asset. The document was created by mistake because our client had been disoriented and confused when creating it, but upon regaining capacity, she quickly realized that she had signed away her most important asset. It was not difficult for Keystone’s probate attorneys to prove to the court why the irrevocable trust should be invalidated, but if the client had created a will under the same circumstances, it might have been more of a challenge to convince the court to set aside the document.
Contesting Non-Standard Wills
Sometimes, the answer to whether a will can be contested is a little more complicated. For example, can a will be contested if it is unsigned? Can a holographic will be contested? Can a will be contested after probate?
Generally, the first thing you should do after receiving a copy of a decedent’s will is to seek the help of a qualified estate attorney to examine the document. Once your attorney has examined it, they will be able to provide you with more information about whether or not you can contest the trust and why.
Can a Will Be Contested if It Is Unsigned?
The short answer is no, because a will that is unsigned is already invalid. In order for a will to be valid in California, the will must be in writing, signed by the decedent or another person who is authorized to sign on behalf of the decedent, and be witnessed by at least two people. These witnesses must also sign a written acknowledgment that they witnessed the decedent sign their will.
The more complicated answer is that with the help of a skilled probate attorney, an unsigned will can offer leverage. The landmark California case Estate of Duke established that a will can be reformed if clear and convincing evidence exists to suggest that the will contains a mistake in the expression of the testator’s intent and establishes the testator’s actual intent at the time the will was drafted.
In short, if it can be proven that the testator had intended to sign their will but failed to do so because of a mistake, there is a possibility that an unsigned will could hold up in court, and by extension, be contested. For example, if there are only unsigned copies of a decedent’s will, but the people who witnessed the signing of the will can attest to there being a signed version of the document, the witnesses’ testimonies could serve as extrinsic evidence of the testator’s intent.
Can a Will Be Contested After Probate?
While laws can vary by state, a will that has passed through probate can still be contested. The only caveat is that in California, parties only have 120 days from the date the will was admitted to probate to bring a contest.
Can a Holographic Will Be Contested?
First, let’s review the definition of a holographic will. A holographic will is a will that is handwritten and signed by the testator. Many states also require the will to be dated. It is important to look up the laws surrounding holographic wills in your state, as it is possible that your state does not recognize the validity of holographic wills.
To be considered valid in California, a holographic will must meet the following conditions:
- It must be clear that the testator desired for the document to serve as their will.
- The testator should have had testamentary capacity when they drafted the document.
- The entire document (or the material portions of it) must be in the testator’s handwriting.
- The testator must have signed the document.
Going back to the question of whether a holographic will can be contested, it absolutely can be. And because of the semi-informal nature of holographic wills, they may actually be easier to contest than wills that were prepared by an attorney and duly executed.
For example, the attorneys at Keystone helped invalidate a handwritten will, even though the time period for contesting the will had long elapsed. They managed to do this by arguing that the document — which neither was in the decedent’s handwriting nor signed legibly by the decedent — did not meet the conditions for being a valid holographic will.
Regardless of how clear-cut your case is, it is recommended that you consult with a probate attorney before moving forward with contesting a holographic will.
Can a Will With a No-Contest Clause Be Contested?
A no-contest clause does not mean that a will cannot be contested; it simply means that if a will contest is unsuccessful in having the document at issue invalidated, the party who brought the contest could potentially be disinherited.
It is worth noting that in recent years, no-contest clauses have become difficult to enforce. Still, there are risks to contesting a will with a no-contest clause, so it is best to consult with an attorney before proceeding with your contest. While these types of results are rare, there were some trust beneficiaries who were forced to forfeit their $10 million inheritance after unsuccessfully contesting a trust with a no-contest clause.
Can a will be contested? Our probate lawyers can weigh in.
Under what circumstances can you contest a will? What are the rules for contesting a will?
The laws surrounding will contests are complex, and they can be especially difficult to navigate during an emotionally charged time, such as after the loss of a loved one.
Our experienced trust and will dispute attorneys can review your loved one’s will and discuss with you your reasons for wanting to invalidate the document. After our attorneys learn the details of your case, they will be able to provide further insight about why the document at issue can or cannot be contested, as well as provide you with an estimate of how much it would cost to contest a will, if budget is a concern for you.
Call our trust and will dispute attorneys today for a free consultation.