Is there something suspicious about a decedent’s will or trust? Do the terms of the document contradict what you had known to be the decedent’s final wishes? 

When the contents of a will or trust don’t seem right, it may be worthwhile to consider contesting the will or trust. Elders are generally more susceptible than others to financial abuse and undue influence, and, as a result, they might be persuaded to amend their will or trust by someone close to them who does not have their best interests at heart. A will or trust can be contested if there is proof that it was created or changed as a consequence of misconduct, undue influence, fraud, mistake or lack of capacity.

You are probably wondering: What are the steps to contesting a will or trust? How hard is it to contest a will or trust? What if your contest is unsuccessful? Could it cause you to lose your inheritance?

Whether you are contesting a trust or contesting a will, this guide can serve as your go-to resource. If learning the ins and out of how to contest a will or trust is too burdensome in the wake of a loved one’s death, you might consider hiring a skilled probate attorney to walk you through the process of contesting a will or trust. An attorney specializing in wills and trusts can not only help with examining a will or trust instrument for red flags, but also with filing the will or trust contest.

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How Do I Challenge a Will or Trust?

Before delving into the steps to contesting a will or trust, it is important to understand what it means to contest a will or trust. It’s also important to determine whether you have a valid reason for contesting a will or trust, whether you have standing to contest a will or trust, and what the outcomes of a will or trust contest could be.

What Are Will and Trust Contests?

Wills are created to communicate the final wishes of a decedent in regard to the distribution of their assets after their death. Trusts are generally created for the same reason, but sometimes can serve other purposes as well, such as to avoid probate or minimize estate taxes. When a will or trust doesn’t seem to convey the true final wishes of the decedent or seems illegitimate in some other way, a will or trust contest can be brought to try to have the entire document or problematic amendments invalidated. 

It is important to keep in mind that a will or trust contest can only be brought for valid reasons; not liking the terms of the will or trust or wanting a larger inheritance do not qualify. An estate and trust lawyer can help you determine whether or not your reason for contesting a will or trust is valid.

What Are the Steps to Contesting a Will or Trust?

Don’t let the process of contesting a will or trust overwhelm you, as there is help. Most of the steps to contesting a will or trust can be performed by an experienced probate attorney, who can present your petition to the court in the best light possible. 

It is important to remember that the court tends to presume that an executed will or trust is a valid document and will generally default to upholding the terms of the will or trust as they are written whenever possible since they contain the final stated wishes of the decedent. The court will only invalidate a will or trust or amendments to the will or trust if it is successfully proven that the terms of the document do not reflect the decedent’s true intent.

The following are the steps to contesting a will or trust:

  1. Determine whether your reason for seeking a will or trust contest is valid.

    Before moving forward with the process of contesting a will or trust, it is important to ask yourself about the motive for your contest. Are you contesting the inheritance you were left because you think you deserved more, or is it because you believe foul play or lack of capacity was involved in the recent changes made to the decedent’s will or trust? If your motive falls under the latter category, you can move on to the next step of finding a trust and estate attorney. If your motive falls under the former category, your reason for bringing a contest may not be valid. Learn more about the grounds for contesting a will or trust.  
  2. Determine whether you have standing to bring a will or trust contest.

    If you think you have a legitimate reason for bringing a will or trust contest, the next step is determining whether you have standing to take this kind of legal action. Standing generally means that you have a financial stake in the outcome of the case. In other words, the will or trust you are contesting gives you less than you would otherwise get if the will or trust were invalidated. In the realm of will and trust contests, persons with standing are generally beneficiaries, heirs (i.e., surviving spouses, children, parents) and trustees or executors and administrators.  
  3. Discuss your proposed will or trust contest with other relevant parties to determine if any of them would like to join the contest.

    If misconduct was involved in the creation or execution of a trust, it is likely that you are not the only one wondering about how to contest a will or trust. Having multiple beneficiaries or heirs join your contest could strengthen your case and help with legal costs.

    If a contest has been brought, and a beneficiary or heir declines to participate, they could lose their seat at the negotiating table and potentially their inheritance. Before making the decision to sit out a contest, it is important for bystander or freeloader beneficiaries, as we like to call them, to discuss their decision to not participate with a lawyer.  
  4. Compile your evidence and seek the assistance of a trained trust and estate lawyer.

    If you do not have experience working with wills and trusts, it is important to speak with a lawyer about your reasons for the proposed will or trust contest. Hopefully, by the time you speak with a trust or will contest lawyer, you will have been provided with a copy of the will or trust. If not, the lawyer can help you to obtain copies.

    By this step, you should also have a good idea of the evidence you have to back up your claim that the will or trust is invalid. Perhaps you are in possession of the prior version of the decedent’s will, which is drastically different from the current version. Or, perhaps someone can testify that the changes to the decedent’s will were possibly the result of undue influence, fraud or duress. The decedent’s medical records are also critical, as they may provide a helpful lens into the decedent’s capacity and state of mind at the time the will or trust was executed.

    It is also important to seek a lawyer’s help to interpret the terms of the will or trust to determine whether a no-contest clause has been built into the document. While no-contest clauses can be difficult to enforce in court, there is always the possibility that you could lose your contest, and consequently, your inheritance as a result of contesting a will or trust with a no-contest clause. A trained attorney can help you evaluate the risk involved in contesting a will or trust with a no-contest clause.  
  5. Work with your lawyer to draft a petition detailing the reasons why the will or trust at issue should be voided and file that petition with the appropriate probate court.

    This is the step where your lawyer will use any relevant background information, evidence or testimony you have provided to support your claim to write a petition to provide to the probate court. With wills, the probate court to which your petition will be submitted is generally in the county where the decedent died. With trusts, the petition will generally be submitted to the probate court in the county where the trustee is administering the trust, also known as the “principal place of trust administration.” 
  6. If the other parties involved are amenable, try to arrange a mediation with help from your lawyer to try to resolve the will or trust dispute prior to trial.

    Will and trust contest litigation can drag on for months or even years before being resolved by the court. This type of litigation can not only be a drain on your time but on your finances as well. If the parties involved in a will or trust contest are open to the idea, they could try to resolve the dispute through mediation, which is essentially an informal negotiation held outside of court between the parties, their lawyers, and a neutral mediator. Most of the time, a mediation will culminate in a compromise between the parties. If a dispute cannot be resolved through mediation, it may become necessary to proceed to trial.

How Hard Is It to Contest a Will or Trust?

What are the chances of winning a will contest or trust contest? How easy is it to contest a will or trust? How do I challenge a will or trust successfully without spending exorbitant sums of money? Do I have enough verifiable evidence to prove that the will or trust at issue does not, in fact, convey the true final wishes of the decedent?

These are all good questions to ask when determining whether it is worth your time and money to bring a will or trust contest.

How hard it is to contest a will or trust will really depend on the circumstances of your case, including the nature of the decedent’s new will or trust, and whether you have sufficient evidence to prove that the will or trust does not actually convey the decedent’s true testamentary intent. Suppose that a decedent had always told their children that they would inherit the family home, but in the last days of the decedent’s life, when the decedent had been on life support and mentally incapacitated, they supposedly executed an amendment to their trust to leave the family home to a new partner. In this scenario, it may be warranted for the children to contest the trust, and it might not be too difficult for them to prove that the trust is invalid. On the contrary, if the amendment had been executed many years prior to the decedent’s passing while the decedent retained full mental capacity, and the decedent’s children had been estranged from the decedent, it could be harder for the decedent’s children to prove that the trust was amended under suspicious circumstances. 

What Happens If I Win My Will or Trust Contest?

If you win a will or trust contest, the subject will or trust will be invalidated. As a consequence of invalidating the decedent’s will or trust, the decedent’s assets may be distributed pursuant to a prior will or trust of the decedent that is still valid, or they may pass to the decedent’s heirs in accordance with the state’s intestate succession statutes if no prior will or trust exists. If you win a will or trust contest that ultimately benefited the estate or trust, respectively, the court will sometimes order the decedent’s estate or trust to pay your attorney’s fees and costs.

If you lose a will or trust contest, the decedent’s assets will be distributed in accordance with the terms of the document. 

Are you wondering how to contest a will or trust? Our attorneys can guide you.

What is the procedure for contesting a will or trust? Can I carry out the steps in contesting a will or trust on my own? How do I challenge a will or trust successfully? These are all valid questions to ask if you are considering contesting a decedent’s will or trust. It is no easy task to bring a will or trust contest so it is best to consult with a skilled will and trust contest lawyer before proceeding any further. Our lawyers are experienced in litigating will and trust contests, and can help you reach the best possible outcome for your case. Call us today to schedule your free consultation.