In order to have standing to contest a will, you need to prove that something about how the will was written may be illegal. You won’t have standing if the will is ironclad, even if the distribution of assets may seem unfair.
The following parties have standing to contest a will:
- Beneficiaries already named in the will
- Beneficiaries named in a previous will, who were written out of the most recent version of will, or whose share of the estate was significantly decreased by the newest will
- Anyone not named in the will but who, because of the state’s intestacy laws, would be eligible to inherit property if a will didn’t exist. This usually means a spouse or child.
Even if you do have standing, you also need a solid reason to challenge a will. Legal reasons for contesting a will may include the following:
The testator was not mentally competent.
The person to whom the last will and testament belongs, the testator, must be mentally competent when writing out the will.
This prevents malicious relatives from taking advantage of him or her, or what’s called having “undue influence.” If a will is the result of coercion, it may be challenged in court.
If the testator is of sound mind when writing the will, he or she is considered to have testamentary capacity. That means he or she understands the consequences of writing a will and assigning beneficiaries as well as the nature of his or her estate.
Laws were broken when writing the will
A will that is not legally valid can be challenged in court. To be considered valid, the will must follow certain laws:
- Wills need to be properly signed by two witnesses to be considered valid. (In some states, the witness can’t be a beneficiary.)
- If the testator made a modification to the will, the new will also needs two witnesses to sign it.
- The testator has the right to distribute the property named in the will. In community property states, the testator generally isn’t allowed to distribute property acquired during his or her marriage if his or her spouse is still alive.
- The testator was not tricked into signing the will.
Forged and fraudulent wills are also not valid. Holographic wills, which are handwritten and may not contain all the necessary legal formalities, may be considered valid if the probate judge approves, but they can be more vulnerable to contest.
There is a more recent version of the will
When the testator modifies the will, the modification — the codicil — automatically revokes all previous versions of the will. Only the most recent version of the will is valid as long as it has been properly created.
The will is incomplete
If certain legal standards are not met in the will, it may be considered incomplete. That could mean failing to sign the will, leaving blank spaces where beneficiary names should be, or simply omitting text where needed.
Contesting a will can be a lengthy and expensive process. But if you’re owed property when a loved one dies, a will contest may be your best chance to recover it.