Young woman and man contesting a will.

What is contested probate?

Contested probate occurs when someone challenges a will that has entered into the probate process. 

Emotions and tensions often run high among family members after the death of a loved one. Decades of conflicts, resentments, and hurt feelings can rise to the surface, but contesting probate or a will requires more than a belief that the will is unfair.


Who can challenge a will?

In legal terms, only someone who has “standing” can challenge a will. 

To have standing, a person must either be 

  • named in the will, or 
  • someone that would inherit if the existing will were found invalid (for instance, if they are a named beneficiary in a competing will)

That means that the deceased’s best friend can’t contest a will just because he’s not in it. 

Why? Because if the will were ultimately deemed invalid, the court would apply the priority for intestate succession to decide how to distribute the assets. Though determined by state law, that priority follows the same general order in every state: spouse, children, parents, siblings, and so on. 

Friends — even the best ones — aren’t included, so even if the will were found invalid, the best friend wouldn’t inherit (assuming he’s not also a creditor with a valid claim). 


What are the legal grounds for contesting a will?

A will cannot cannot be invalidated simply because someone doesn’t like its terms. Challenging a will requires showing that one of five very specific problems exists:

  • The will wasn’t signed in accordance with state law

Each state sets its own rules about how a will must be executed to be valid. For instance, a state might require that the will be signed by the testator (the person creating the will) in the presence of a witness, who must also sign. 

A large number of states allow admission of a will signed only by the testator (a holographic will), but most require that the will be written completely in the deceased’s handwriting — and they’ll want witness testimony to confirm that it actually is the deceased’s handwriting.

  • The deceased lacked capacity

Because people may experience dementia or other mental issues as they age, the question of “testamentary capacity” — whether the testator understood the legal impact of signing the will at the time they signed it — is a frequent reason for a will contest.  i.e. did they understand what their assets were and who would inherit them. 

Courts are hesitant to rule that the deceased lacked capacity, so while someone experiencing dementia may have memory loss or confusion, that doesn’t necessarily mean they didn’t understand what they were doing at the time they signed the will. As long as they understood what their assets were and who would inherit them, they are usually found to have capacity.

A court may find a will invalid based on lack of capacity if they receive testimony from a medical doctor indicating that they were concerned about incapacity at the time of the will signing or shortly thereafter. 

  • The deceased was unduly influenced

To prove undue influence, someone must prove to the court that the actions of an individual put so much pressure on the testator to make a certain change to the will that the testator actually lost their free will. One sibling’s repeated requests for Mom to leave him the house don’t equal undue influence — even if he threatened never to speak to her again. 

Undue influence cases often involve someone becoming very involved in the testator’s life right before their death, with last-minute will revisions that benefit the new individual or entity. Because the deceased is not available to testify to their state of mind at the time, these cases can be very difficult to prove. 

  • The will was procured by fraud 

A will was procured by fraud if the individual signing it thought they were signing something else. For instance, a will is fraudulent if they were told they were signing a healthcare proxy but were actually signing a will—or if they knew they were signing a will, but the provisions of the actual document were altered prior to signing without their knowledge. 

Again, the absence of the deceased from the probate process can make this difficult to prove. 

  • A more recent will exists

Even if the will itself cannot be invalidated by any of the above means, it could be found invalid because the testator signed another will after they signed the will that has been presented. The most recent valid will is the only one that can be used for probate. 


How should you handle contested probate?

As you can see, challenging a will is not a simple or an easy process. The law treats wills with a great deal of respect, so they are difficult to invalidate. 

However, if you are the named executor of a will that is being contested, you should not underestimate the time and expense involved in resolving the issue. Probate with a contested will is one of the few times that we recommend seeking legal counsel as soon as possible. 

What happens if the will is invalidated?

If a will is found to be invalid for one of the reasons listed above, it cannot be remedied because the testator is no longer alive. Thus, the will is thrown out and the probate court will follow either a previous valid will or, if no previous valid will exists, the priority of intestate succession for naming an administrator and distributing assets.