Contesting a will

Contesting a will is the legal process of challenging the validity of a deceased person's will in probate court. Will contests are adversarial proceedings where a person with legal standing argues that the will should be partially or entirely invalidated due to specific legal grounds such as undue influence, lack of mental capacity, fraud, or improper execution.

18 steps across 5 sections

1. 1. Lack of Testamentary Capacity

  • The nature and extent of their property
  • Who their natural heirs are (spouse, children, etc.)
  • What a will does (disposes of property at death)
  • How these elements relate to form a plan

2. 2. Undue Influence

  • A confidential relationship between the influencer and testator (caregiver, family member, attorney)
  • The testator's vulnerability (isolation, dependence, declining health)
  • Suspicious circumstances (influencer arranged the attorney, was present at signing, received a disproportionate share)
  • A result that deviates from what the testator previously intended

3. 3. Fraud or Forgery

  • Fraud in the inducement The testator was tricked into signing by false statements (e.g., "Your daughter said she doesn't want any inheritance")
  • Fraud in the execution The testator was deceived about what they were signing (told it was a different document)
  • Forgery The signature on the will is not the testator's

4. 4. Improper Execution

  • The testator must sign the will (or direct someone to sign on their behalf)
  • The will must be witnessed by two disinterested witnesses (who are not beneficiaries)
  • Witnesses must sign in the testator's presence (and in some states, in each other's presence)
  • Some states require the will to be notarized (self-proving affidavit)

5. 5. Revocation

  • Creating a later valid will that expressly revokes prior wills
  • Physically destroying the will (tearing, burning) with intent to revoke
  • Changes in circumstances that trigger automatic revocation under state law (e.g., divorce)

Common Mistakes

  • Waiting too long
  • Contesting based on "unfairness" alone
  • Underestimating cost and time
  • Not preserving evidence early
  • Ignoring a no-contest clause

Pro Tips

  • Act immediately
  • Get a case evaluation before filing
  • Document everything
  • Request a copy of prior wills
  • Consider the cost-benefit ratio

Sources

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