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What Is a Will Contest?



The idea of a contest usually brings to mind good-natured competitors, spirited competition, and a worthwhile prize. A will contest does not share many of these characteristics. A will contest is a dispute brought by someone who is unhappy with the distribution of property under the will. The goal of a will contest is to have the probate court either throw the will out entirely or invalidate certain portions of it. Will contests often pit family members against one another over who should inherit what from a deceased relative.

Not just anyone can start a will contest. Most often will contests are brought by people who are unhappy with the will and believe they should have received a distribution or a larger distribution from the will. However, this alone is not enough to convince a probate court to invalidate a will. Generally these are the four most common reasons to invalidate a will:

• The will did not comply with a state's technical requirements, such as it was not signed, did not have the correct number of witnesses, or was not properly worded.

• The will was a forgery.

• The decedent did not sign the will freely and was either forced or unduly influenced to sign the will or signed the will due to fraud.

• The decedent was not of sound mind, also known as lacking mental capacity, when he or she signed.

If the will contest is successful, the will is invalidated either in whole or in part. The probate court would then distribute the proceeds of the estate based on state intestacy laws, which will be different from what was specified by the will. The party challenging the will has to incur their own costs, while the costs of defending the contest are taken from the estate itself. Therefore, even if the challenging party wins the will contest, the estate will be smaller due to paying the costs of defending the challenge.

Wills should be drafted to avoid will contests at all costs. If you believe that disputes will arise regarding the distribution of your estate, it makes sense to have your will drafted by a competent attorney who can foresee and hopefully eliminate most of the reasons for a will contest.