Can You Contest a Will?
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Suppose your grandparent who recently died had always told you they were going to leave you their home. But when you received a copy of the will from the executor of the estate, you were taken aback to learn they left their home to your sibling. You suspect that your sibling had become close with your grandparent toward the end of their life to gain more control over your grandparent and persuade your grandparent to leave them their home. Can a will be contested under these circumstances?
Or, suppose that the decedent remarried shortly before they died and changed their will to leave everything to their new spouse. In the prior version of the will, the decedent had left everything to their children, so the children believe the new spouse must have unduly influenced the decedent into making these sweeping changes. Can a will be contested under these circumstances?
These two scenarios present common fact patterns in will contests. In the former scenario, it may be that the sibling had unduly influenced the grandparent into leaving them their home, and in the latter scenario, it appears that the decedent may have been unduly influenced by their new spouse to execute a codicil (i.e., an amendment to their will) that left everything to them. But even if the facts of your case cause you to question the legitimacy of a decedent’s will, whether you actually have the ability to contest the will depend on a number of variables, which we will discuss later in this article.
If you are wondering about whether a particular will can be contested, it is critical you get in touch with a will contest lawyer before it is too late. If a will contest is not brought in a timely fashion, it may not be able to be brought at all.
Rules for Contesting a Will
Can a will be contested if there are only some provisions you wish to contest? Can you contest a will’s codicil without contesting the actual will? Can you fight a will in court if you do not have proof to back your claim that the decedent had been financially abused? 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 will doesn’t reflect what the decedent’s family knew to be their deceased loved one’s final wishes. Perhaps the will leaves a sizable gift to a caregiver — a situation in which undue influence is usually presumed by the court. Or perhaps the will was executed during a period in which it’s believed the decedent lacked mental competence.
When deciding whether a particular will can be contested, you must first look at 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 that the terms of the will contradict the true final wishes of the decedent?
Whether you have the ability to 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 a party can contest a will depends on whether they have what is known as “standing” — i.e., financial stake in the outcome of the matter.
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 canceled 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 in the event the will is set aside, you would not have standing to contest the will.
For example, suppose you were the close friend of a decedent who cared for the decedent toward the end of their life when they were ill. The decedent’s family members, on the other hand, were nowhere to be found. You were certain that the decedent would leave you some kind of gift through their will, but when the will was read, your name was not mentioned. It is baffling to you that the decedent left most of their assets to their estranged family members instead of you. Can a will be contested by the friend in this scenario? The answer to this question would generally be no. Let us explain.
When someone passes away without a valid will, their assets pass to their heirs through a process called intestate succession. Heirs generally consist of the closest family members of the decedent, which include their spouse, children, parents, etc. In the aforementioned scenario, if the decedent only had one will, and that will was canceled through a successful will contest, the decedent’s assets would pass to the decedent’s family. Intestate succession statutes do not allow much room for interpretation, nor can they be contested. The friend, therefore, would not have standing to contest the will. The exception would be if the decedent had executed a prior will that did leave their friend a beneficial interest in the estate; in this scenario, the friend would have standing to the contest the will because their share would increase in the event the new will were set aside.
What Are Grounds for Contesting a Will?
Suppose you are a beneficiary of your deceased grandparent’s estate, but so is your sibling, who, unlike you, failed to keep in touch with your grandparent or help them during the final years of their life. You find it unfair that your grandparent left you and your sibling equal shares of their estate. Can you fight a will on these grounds?
The short answer is no. Unless it can be proven that your sibling engaged in unethical behavior (e.g., undue influence or fraud) in order to convince your grandparent to leave them a greater share of the estate, a will cannot be contested because you find its provisions to be unfair or you think you deserve more.
To contest a will, one of the following grounds must exist:
- Undue Influence: Excessive persuasion was used to compel the decedent to make drastic changes to their estate plan.
- Lack of Capacity: The decedent had not been mentally competent enough to execute an estate plan when they did.
- Elder Abuse: Financial, physical or psychological abuse had been perpetrated against the decedent, and it had 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 procedures prescribed by the law had not been followed by the decedent 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 it.
If your reason for contesting a will falls outside the aforementioned parameters, it is unlikely you will be able to contest the will. Nevertheless, you should still speak with a trust and estate lawyer about the will at issue before making a determination on your own about its validity.
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 likely be required.
Can You Dispute a Will Amendment?
Yes, changes made to a will in the form of a codicil, an amendment to a will, can be contested. A codicil is a separate legal document that is usually executed at some point after the creation of the original will.
It is entirely possible a decedent executed their will when they retained capacity and thereafter executed a codicil while in an altered mental state or while subject to undue influence that materially altered the dispositive provisions of the will. In such circumstances, it would make sense to challenge the codicil without challenging the validity of the underlying will.
What Happens to Estate Assets After a Successful Will Contest?
If you successfully prove your case that a will is invalid, the decedent’s assets will generally pass according to the provisions set forth by the decedent’s prior estate planning documents (so long as they were valid). If the decedent had no prior estate planning documents that were valid, the decedent’s assets will generally pass to their heirs through the process 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 will 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 that the will had been executed during a time in which the decedent lacked capacity, or if the will was procured by undue influence, fraud, mistake, duress or menace. The grounds for contesting a trust are virtually identical, with one rare exception, which we will discuss below.
Contesting a Will/Trust on the Basis of Mistake
The conditions that 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 when they were really executing a will.
For example, Keystone represented a client who was competent in her everyday life but had been drugged by her son in order to make her execute an irrevocable trust that contained the majority of her assets and named him as the sole trustee. The document was created by mistake because she did not know what she was doing when she created it, but upon gaining capacity, she quickly realized that she had signed away all her assets. It was not hard for Keystone’s estate and trust attorneys to prove to the court why the irrevocable trust should be invalidated. If the client had created a will under the same circumstances, it might have been more difficult to convince the court to set aside the document.
Can a Will Be Contested If It Is Unsigned?
The short answer is no, and that is because a will is already not valid if it has not been signed. 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 persons, each of whom signed 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 persons who witnessed the decedent signing their will can attest to there being a signed version of the document, the witnesses’ testimony 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 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. It is still, however, 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 lose their inheritance.
It is worth noting that in recent years, no-contest clauses have become more difficult to enforce. Nevertheless, it is best to consult with an attorney before contesting a will with a no-contest clause to ensure that your existing inheritance will not be jeopardized.