How to Contest a Will: Grounds and Process

Ever Wonder How to Contest a Will?

You might not have ever thought about how to contest a will. Yet, you’ve likely heard about many instances of wills being challenged after a famous person has died.

For instance, Michael Jackson, Aretha Franklin and Phillip Seymour Hoffman come immediately to mind. However, you may even know someone not of celebrity status who has passed, and their family is contesting the will, giving you the motivation to perhaps challenge a will.

Before you launch into contesting a will there are several things you must know to be successful. However, I say this in all seriousness: Contesting a will can be a steep uphill battle and you’ll require solid legal advice about your chances before doing anything. Additionally, there are specific reasons that are grounds for contesting a will. Likewise, there are specific processes that must be followed.

Grounds For Challenging A Will

You must have a very good, provable reason to contest a will. There are several general reasons that provide grounds for contesting a will. Below are those that are most accepted.

Lack of Testamentary Capacity:

This means the person who made the will, the testator, was not mentally able to make a will. In other words, they were not of sound mind. Generally, a person must be able to understand what they own, the value of their assets, who their natural heirs are, what they are giving and to whom. If you think the testator didn’t understand those three things, then you can challenge the will. But you’ll need proof. You can’t just say the person was incompetent.

Fraud, Undue Influence, or Forgery:

If the testator created the will under duress, for instance they were tricked into signing a will, or they were forced to sign a will, or if their signature was forged, the will can be contested. Very often, successful Will contests occur when there are sudden and unusual changes in the estate plan, and there is evidence of undue influence.

Another Will:

If there is a newer Will than the one being probated, that is a reason to contest it. Sometimes there may be confusion as to which will is the most current, and that can also be grounds to contest it. This happened in the Aretha Franklin case.

Unmet State Requirements:

Each state has its own laws about what a Will must contain. If the Will does not meet those requirements, it may be invalid. For example, some states do not permit handwritten wills that have no witnesses, while others do. Some states require two witnesses to a will, while others require three. Also, the Will must meet the requirements of the state where the testator had their residence to be valid. So, if the testator was a resident of Georgia, but the will was written in Florida and conformed to Florida law instead of Georgia law, it might not be valid.

Process For Challenging A Will

Once you’ve determined that you have grounds to challenge a will, the next step is the legal procedure. First, you must find out what the statute of limitations is on a will challenge in your state. This is the period in which you must file legal papers. If the deadline passes and you haven’t filed anything, you lose your right to challenge the will. It could be weeks, months, or years from the date of death or filing of the will with the court.

Next step, you must file a petition in the state probate court where the will is being probated. Each state has its own forms, so you can check with the probate court office or hire an attorney. The petition notifies the court and the estate that you are contesting it. Your case could settle, or it could go to a hearing. The judge will decide if the will is valid.

If you’re unsure about whether you have grounds to challenge a Will, you should talk to a lawyer.

People often underestimate how difficult it is to challenge a Will and they don’t understand that the burden of proof is always on the person challenging the Will.

If you would like our help in determining if you have grounds for contesting a will, give my office a call at (470) 235-7868. It’s better to know your chances before embarking on what could be a long, expensive and ultimately unsuccessful waste of time.

Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!