Estate Litigation: Who can Contest a Will?

We certainly hope that our loved ones will accept our final wishes, but unfortunately, disagreements and old hurts can make an appearance during such an emotional time.  When someone is left out of a will, or feels they did not receive their fair share of an estate, they may contest the will based on one or more of the following:

• The testator, the person who had the will created, lacked the capacity to make a will.
• Another person had undue influence over the testator.
• There was fraud involved before, during or after the will was created.
• There was a mistake in the will – for example, another child was born after the will was drafted.

Who can file a will contest?  Generally, anyone who has a legitimate financial interest in the estate can challenge the will. The person’s financial interest must be considered to be more than speculative. In other words, you cannot contest a will if you were friends with the deceased and think he or she should have left you something. However, if you were not left anything in the will, but would be entitled to something under the state intestacy laws as an heir, then you would be in a position to challenge the will.  Why?  Consider what would happen if you were to win the will contest, the will would be found invalid and the estate would be distributed according to the laws of intestacy to the heirs.  If you would not receive a share under these laws, what would be the point of filing a will contest?

Proper estate planning can help reduce the chances of a will contest, and there are tools an estate planning attorney can use should you worry about a loved one challenging your will.