Grounds for Will Contests Text Size:

Most of the time a will goes through probate without a problem. However, it's possible to contest a will or challenge it's validity if you feel it wasn't written correctly.

No Contest Clauses

When a will is created, a "no contest" clause can included to stop anyone from challenging your wishes. Basically, a no-contest clause forces a beneficiary to choose between taking what you give them under the will or getting nothing at all.

If a beneficiary still tries to contest the will and the no contest clause is enforced then that beneficiary will be completely disinherited and his or her share will be distributed into the residuary estate, unless there are directions regarding what to do with the share. When writing your will you can check with your state to find out if there are laws that will enforce a no contest clause.

You Must Have Standing

One of the requirements for contesting a will it that you somehow have a connection to the will and feel harmed by its contents. You either have to be named in the will, but feel that you should have inherited differently, or weren't named in the will and should have been named in it or would have received money if the person had died without a will.

Valid Reasons for Contesting a Will

You also must have a valid reason to challenge a will, such as undue influence, fraud, mistake, or loss of mental capacity of the testator. Simply being upset with your inheritance amount isn't an actual reason to contest a will.

Testamentary Capacity and Formalities

Some will contests are based on allegations that the deceased person, testator, wasn't "of sound mind" or testamentary capacity to make the decisions in the will or made according to state laws. In general, wills must be signed and witnessed by at least two people and everyone must be over 18 years of age. These grounds depend on the laws in the state where the will was created, signed and filed for probate.

Fraud, Undue Influence and Mistake

A will, in full or in part, can be found to be void if it was made under undue influence (i.e. duress), fraud or mistake. This means that all of or part of the will won't be enforced if any of the above occurs.

Anything that hampers the ability to make a will by the "testator" to their wishes shouldn't be accepted in a court of law. If a will is voided, the estate will be distributed under the state's intestate laws. If only part of the will is void then the share from the voided distribution is dumped into the residuary estate and dispersed according to the will.

Undue influence could be present when a trusted person influences the testator to make a will that benefits him. The key is whose overall intent was put into the will: the creator or the beneficiary's.

A full will or any part of it may be voided if it was created under fraudulent means. This could happen if the person making the will is presented with information that made them change their mind about whom to leave their property to. If Carol tells her grandfather that her brother, Jim, was a thief to get him to change his will when Jim really wasn't a thief could be fraud.

A mistake can be found when it is proven that the testator did not intend to include certain provisions in a will or if the testator signed the wrong will. When the mistake involves a signature, a court may revise a will that was signed by mistake, such as when it is clear that a husband and wife intended to make reciprocal wills but signed the wrong original documents. On the other hand, if the testator made a will under a mistaken belief of fact (i.e. was mistaken in his or her belief regarding certain facts), that mistake generally would not invalidate the will.

Tortuous Interference with an Inheritance

Instead of contesting a will or claiming it's invalid for any reason, there's another way to interfere with an estate. You can file a lawsuit against the person who is receiving the property you think should be yours when the creator of the will is still alive.

This tortuous interference requires you to prove that the defendant (person you're suing) interfered with the creation of the will for any reason. If you win your case, not only will you be able to inherit from the will, you'll recover attorney fees and any other costs you paid associated with the suit as additional punishment.

Questions for Your Attorney

• Does my state enforce no contest clauses?
• How do I prove undue influence in my state?
• Does my state allow claims for tortuous interference with an inheritance?
• What happens after a will is contested and is declared void?

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