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What are the Steps for Contesting a will?

By Donn Saylor
Updated May 16, 2024
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The steps for contesting a will include closely examining the will itself, studying local estate and probate laws, hiring an attorney, filing a dispute, and gathering evidence. The will contesting process can be a lengthy, complex, and potentially costly one. Some of the steps can be undertaken without the aid of a lawyer while other steps require the counsel of an experienced legal professional.

Firstly, someone going through this process investigates the document closely. If he or she is a beneficiary, or could be named a beneficiary in the event the will is overturned, the person contesting the will has a legal right to file a dispute. Some wills contain a "no contest clause," meaning any persons who dispute it risk being disinherited. There are certain jurisdictions that will ignore this clause if there is sufficient evidence suggesting the will is fraudulent.

The next step entails gathering knowledge about local estate and probate laws. Different jurisdictions have different laws on how to contest a will and in what time frame a dispute can be filed, typically just 30-90 days after the executor of a will has notified the beneficiaries. Laws also vary on the reasons one may go about renouncing a will. These could include undue influence exerted on the testator, the testator's mental soundness, or a faulty execution of the will itself, such as an unsigned document or a document completed with no authorization from witnesses.

At this point, most individuals contesting a will hire a seasoned estate or probate lawyer. The lawyer helps determine the legitimacy of the disputation and guides the contester through the appropriate legal channels. Filing a dispute necessitates a court hearing, and an attorney assists in making sure the appropriate legal matters are addressed. The attorney also aids in presenting appropriate evidence, questioning witnesses, and submitting a legally sound argument for the overturning of the will.

The lawyer draws up the initial dispute on behalf of those contesting a will. The dispute is then filed in the court system and a hearing date is set. While waiting for the hearing, contesters continue to accrue evidence to support the filing.

Evidence for contesting a will can include any number of documents. These documents might be previous wills, financial records, letters and correspondence, or any medical documentation testifying to the testator's mental state. Video or audio recordings and witness testimony are also commonly used as evidence in the process.

After the hearing is completed, those contesting a will have two options. They can attempt to settle the case out of court or they can move forward with a trial. Many contesters cite the emotional and financial toll of a full-on trial, but the financial reward may make the challenging process worthwhile. It is an issue best decided by the contester, bearing in mind the details of the case and the stresses placed on the family unit.

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Discussion Comments
By Melonlity — On Apr 23, 2014

@Markerrag -- legal fees can add up quickly in these cases because there are the fees of the person contesting the will to consider and the legal fees that will be incurred by the estate. After all, someone has to provide a lawyer to defend the contest and those fees come directly out of the estate. A problem with will contests is that some people bring them for the principal of the matter. A lot of estates have been sucked dry by legal fees due to people fighting over such "principal" issues. That is a trap to avoid.

By Markerrag — On Apr 23, 2014

@Terrificli -- another thing to keep in mind is how large the estate actually is. If someone contesting the will will spend more in legal fees than he or she will receive, the whole enterprise will probably be frustrating.

At any rate, here's something else to consider. If the amount the son in your example is to receive is not clearly defined by state law, there's probably some precedent found in case law that will suggest how much that kid can receive. Digging through all of that typically requires the assistance of an attorney.

By Terrificli — On Apr 22, 2014

The first step to contesting a will should be for the person challenging what he or she is to inherit is actually entitled to more than what that person will receive under the will. Skipping that step could be a waste of time and legal fees.

In a lot of states, there are laws in place that set out a statutory minimum of an estate people are entitled to receive. For example, let's say a parent has two sons. One son receives 100 percent of the estate under that parent's will and the other one receives nothing. The son who gets nothing is well advised to find out what state law says is the minimum that son should receive.

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