Can You Contest 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 original will? Can you fight a will in court if you do not have proof to back your claim that the decedent had been exposed to 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 wishes. Perhaps the will leaves a sizable gift to the drafter of the will — 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.

Whether or not a party can contest a will depends on whether they have what is known as “standing” — i.e., a 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 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 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 them toward the end of their life when they had been 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.

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. In other words, bringing a will contest because you find its provisions to be unfair or believe you’re deserving of a larger inheritance does not qualify as a valid reason for contesting a will.

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. 

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.

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.

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.

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.

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.

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’ testimonies could serve as extrinsic evidence of the testator’s intent.

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. 

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.

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 a will had long elapsed, 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.

Whether or not your case is clear-cut, it is recommended that you consult with a probate attorney before moving forward with contesting a holographic will.

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 or eliminated, as it was for these trust beneficiaries who unsuccessfully contested a trust with a no-contest clause and ended up forfeiting their $10 million inheritance as a result.