Insight on Estate Planning

The AP&S Trusts & Estates Blog

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Will Your Will Be Contested?

If your estate has to be probated, in a perfect world everything will go without a hitch and the assets are distributed to beneficiaries in a timely manner. Everyone is satisfied with their inheritance and family harmony is preserved.

Of course, the world isn’t picture perfect. Your will may be challenged based on its validity, its terms or even your mental capacity at the time it was drafted. Although state law generally controls these matters, there are guidelines to follow. Keeping that in mind, let’s examine who can contest a will and when and how you may be able to discourage discord.

Who can contest a will?

Your last will and testament, if properly executed, is a road map for an executor to follow. Notably, it includes a legally enforceable mandate as to the distribution of your assets to named beneficiaries. Some bequests are specific, while others may be covered by the residuary clause.

The contest to a will is made in probate court by an “interested party.” To contest a will in any state, the person must have legal standing. This ability is restricted to beneficiaries named in the will, those named as beneficiaries in a prior will that have been cut out or that are receiving a reduced inheritance, and anyone else eligible under the state’s intestacy laws. Typically, this means a spouse, child or other lineal descendant.

Beneficiaries can’t contest a will until they’ve reached the age of majority in the state (age 18 in most states). However, a parent or guardian can initiate legal action on a younger beneficiary’s behalf.

When can a will be contested?

There are several reasons for contesting a will:

Violation of state law.

Each state has specific laws governing the wills of its residents. Generally, you must sign the will in the presence of at least two witnesses. All three people must be in the room watching each other sign the document. Depending on state law, other technicalities may have to be observed. Don’t assume that the will is legally binding just because it was signed in your attorney’s office.

Lack of competency.

Did the testator (the person who made the will) have the capacity to understand the terms of the signed will? This is another aspect that’s governed by state law. It’s typically difficult to prove to the court that a testator lacked the requisite mental competency. For example, in some states a person may have dementia and still be treated as having capacity to sign a valid will. Evidence provided by physicians may be critical.

Undue influence.

As people get older, they may be more susceptible to being influenced by others, sometimes resulting in revisions or even a complete re-write of a will. The main issue is whether enough pressure was exerted on the testator to cause a loss of free will. For example, this may occur when the influencer isolates the testator from other family members and friends. Note that mere threats, nagging and verbal abuse usually aren’t sufficient to uphold a challenge. As with a lack of capacity, this charge generally is difficult to prove under state law.


Someone contesting a will may claim that the testator was duped into signing it. Let’s say that the testator signs a different document, such as a living will relating to end-of-life decisions and thinks that it’s a last will and testament. Or maybe the testator is misinformed about the terms. This type of challenge often relates to mental competency. The testimony of witnesses can be significant in these cases.

A subsequent will.

Did the executor probate the latest version of the will? A subsequent will revokes other versions. It’s only the last one that counts as long as it meets state requirements. Frequently, a testator modifies or rewrites a will without notifying all the interested parties, leading to a challenge in court. Note that minor modifications included in a codicil don’t revoke a prior will but may still muddy the waters.

Practical approach

Be proactive about protecting your estate from will contests. Start by observing all the legal technicalities in your state. Discuss the terms of your will and the reasons for your decisions with your loved ones so they won’t be caught by surprise. Use this opportunity to express what they mean to you beyond your worldly possessions. Also, consider the benefits of transferring assets to a living trust. Finally, bring your attorney into the loop. With proper guidance, you can increase the chances of avoiding future conflicts.

SIDEBAR: Protections outside of probate

Some types of property — such as retirement plan accounts and IRAs, life insurance proceeds, and property in a living trust — don’t have to be probated. They generally pass directly to the named beneficiaries regardless of what the will says.

However, there are certain exceptions. For example, surviving spouses may receive some protection from prevailing laws if they’re excluded from retirement accounts, absent a valid waiver. Also, federal laws may protect the rights of an ex-spouse if the testator neglects to change beneficiary designations.

Successful challenges to these beneficiary designations are rare. Nevertheless, to be on the safe side, update your beneficiary choices after major life events, such as marriage, birth of a child or death of a family member.

About The Authors

A professional headshot of Kristin Matsko in front of windows.

Kristin N. Matsko

Kristin, Chair of the firm’s Trusts & Estates Group, counsels individuals and fiduciaries on a wide variety of trusts and estates… Read More

A professional headshot of David Riedel in front of windows.

David T. Riedel

An author and frequent lecturer on estate planning, administration and taxes, David provides responsive, sympathetic and personable counsel to his varied… Read More

A professional headshot of Kathryn Windsor in front of windows.

Kathryn S. Windsor

Kathryn is Chair of the firm’s Tax Group and represents clients in a variety of tax law matters. Her practice areas… Read More

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