Trusts and Estates

Challenging a Will May Leave You with Nothing

Reviewed by Betsy Simmons Hannibal, J.D., Golden Gate University School of Law
Mounting a will challenge comes with serious risks, including the risk of spending a lot of time and money for a result of total disinheritance.

Talk to a Local Wills And Probate Attorney

With a lawyer's help, you can challenge the will of a deceased person, but the result may be uncertain, and you could end up with nothing at all.

You Must Have a Basis for Challenge

To challenge a will you must show that there is either something wrong with the will or that there was something wrong about the conditions under which the will was made. For example, you can challenge a will by claiming that:

  • the will does not meet formal requirements, such as the requirement for the signatures of two witnesses
  • the will maker did not have the legal capacity to make a will, or
  • the will maker made the will under suspect conditions, like fraud, mistake, or improper influence.

Flaw in Document Requirements

A formal will document must be signed by the will maker (with testamentary capacity, see below) and by two adults who will not receive anything under the will. For most formal wills, those are the only requirements to make a will document valid. In fact, valid will can be very simple, and most wills are lengthy only to set out its terms, not to make it valid.

In some states, if the will maker writes the entire will in his or her own handwriting, no witnesses are required. These are called “holographic” wills. However, they are usually not a good idea unless your circumstances keep you from being able to make a formal, witnessed will.

Lack of Capacity

A valid will requires that the will maker possessed "testamentary capacity," at the time the will was made. Sometimes this is known as “being of sound mind,” and it generally means that the will maker must know what he or she is doing by making a will. That is, he or she must have a clear understanding about what he or she owns and about what it means to leave it to someone else through a will. Capacity also requires that the will maker meet the age requirements set by the state. This age is usually 18, but some states allow younger people to make wills if they are married or in the military.

When challenging a will on the basis that the decedent did not understand the nature and extent of his or her property or who the property would go to without a will, you may be required to provide medical evidence showing mental impairment.

Undue Influence

A challenge of undue influence involves showing that the decedent did not make the will of free choice, but rather under the improper influence of another person. For example, if a lone sibling cares for an unwell parent, and the parent’s will gives that sibling a greater portion of the estate than other siblings, the other siblings may challenge the will saying that the caregiver sibling pressured the parent to change the will.

Fraud or Mistake

A will can also be challenged for fraud – for example if a challenger can show that pages have been inserted into the will after the decedent signed it or that the decedent's signature was forged.

Mistake is also grounds for a challenge. For example, if a mother’s will says that the majority of her estate should go to “John R. Smith” (the name of her nephew), when her son’s name is “John B. Smith”, her son could challenge the will on the basis that his mother simply made a typing error.

Challenges Are Handled in Probate Court

You challenge a will by filing a petition in the state probate court that has control over the will maker’s estate. The type of petition, the basis for the challenge, and the likely results depend on the state law where the court is located. Each state's law has its own procedures for a will challenge – for example, the deadline for filing your challenge and whom you must notify about your challenge – and these rules can vary widely by state, and even by county.

Risks of Challenging a Will

If the will you want to challenge contains a “no-contest” clause, you may risk losing any inheritance that the will provides to you. Many wills contain a no-contest clause which usually says something that boils down to “anyone who challenges this will without a good reason will lose any gifts he or she would otherwise receive through the will.” No-contest clauses are meant to discourage will challenges by beneficiaries who are disgruntled by how little the will leaves to them.

In reality, however, good faith challenges are rarely thwarted by a no-contest clause. So if you have a good reason to challenge a will – such as those outlined above -- a no-contest clause shouldn’t be a deterrent to your challenge. Also, the likelihood of a court upholding a no-contest clause varies greatly by state. So just because a will has a no-contest clause doesn’t mean it will be enforced by the court who reads the will.

A more practical risk to challenging a will is the time and money that it will cost to mount the challenge. To challenge a will, you’ll need to hire a lawyer and pay court fees. And the issue will likely take many months, if not years, to resolve.

A Lawyer Can Help

Challenging a will is a complicated legal task, and you will need help from a good estate planning lawyer.

Questions for Your Lawyer

  • Do I have grounds to challenge my mother’s will?
  • How much will it cost to challenge the will and how long will it take?
  • If I lose the challenge to my mother’s will, will the no-contest clause keep me from inheriting anything at all?
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