Why Would Someone Contest a Will?

Written by AskTheLawyers.com™ on behalf of Charles Triay with Triay Law Office.

Why Would Someone Contest a Will?

The death of a loved one often leaves friends and relatives in a state of uncertainty, especially once the time comes to make sense of everything that is left behind. Everything that was built up and saved by the deceased during their lifetime must now be dismantled, dispersed, and resolved among the living. Did they have children or pets that depended on them? Were certain sentimental items promised to certain people?  If they had a fortune, who are the beneficiaries? Most of the time, this process is handled gracefully, but unfortunately, there is a chance that things could go awry to the point where contesting the will is simply a necessary and rightful move.

What Does a Will Contest Look Like?

A will contest and a regular civil law case look quite similar. Here's how the process works:

  1. File a complaint with the probate court
  2. Both complaining and defending sides have their probate litigation attorneys
  3. Validity of the will is defended by the estate's executor or another representative
  4. Evidence is presented to and reviewed by the probate judge
  5. Judge may rule the will to be valid, invalid, or partially valid/invalid.

Be Careful of the No-Contest Clause

Before moving forward, be sure that the will does not contain a no-contest clause before contesting it. This clause is a precautionary measure by the individual who made the will, and it is put there to discourage friends, relatives, and other beneficiaries from contesting the will.

If a beneficiary chose to contest this will and lost, then they forfeit whatever was originally offered to them in the will. They could walk away empty handed. In fact, some will not only walk away empty-handed, but they could also be required to pay legal expenses for both sides in the battle. If it is in the will, take the time to learn if this clause is highly enforced in your state.  Some strictly honor this and others do not.

Keep in mind:

  • Every state is somewhat different in how they handle estate law.
  • In a majority of states, estate assets will be used to pay the defense attorney.
  • Contesting a will can consequently delay estate administration for all beneficiaries.
  • The executor(s) will tend to remain neutral throughout this process since their personal liability is at stake

Usual Reasons for Contesting a Will

There are several reasons for contesting a will, but they tend to mostly fall under two general scenarios:

1) the person that signed the will/trust (aka testator) lacked the mental capacity to
fully grasp what the various important elements of the will, or:

2) the testator was unduly influenced by a third party. Many consider this to be financial abuse of an elder.

There are many things that can go wrong in either of the above situations.  These are the items that could invalidate the will:

  1. Proof that the deceased was not mentally capable of making their will (example: Alzheimer's)
  2. Proof that the deceased was not fully aware of or did not understand the content of the will (example: someone had them sign their will while they were barely conscious on their deathbed)
  3. Proof that the deceased was unduly influenced into making a will against his/her volition (example: caretaker threatened the deceased)
  4. Proof that the will is a forgery/fraud (example: family member signed will on behalf of the deceased)

Other Reasons

  • A state trustee could be found guilty of breaching their fiduciary duty (example: if the trustee is self-dealing from the will)
  • A will could be found invalid if it wasn't properly executed in the first place.  (example: will was made through an online program and missed certain necessary parts)  
    • Every state is different, so make sure that you know what your options are. For example, in California, there is the "harmless error rule." Probate litigation attorney Charles Triay explains:

      The California Probate Code allows for a "harmless error" rule. In this rule, the court may overlook small mistakes in procedure or technicalities as long as the testator's intent can be demonstrated by clear and convincing evidence."


Not all wills are alike, and not all wills are ironclad. It is more common than people think to actually contest a will, even if courts might seem hard to convince. Things have been emotional enough, so at least get peace of mind by hiring an experienced probate litigator to help you successfully navigate through the stress of an inevitably challenging probate case.

Written on behalf of Charles Triay by AskTheLawyers.com


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