This article should be your starting point to learn about contesting wills. It provides general information about contesting wills. This general article will lead you to specific articles on the site and on our blog where you can find more detailed information about the particular question you have concerning will contest. Click on any highlighted or underlined word to get more information.

Background

When a person makes a will when he does not have the mental capacity to make a will or when he is so dominated by another that he can't make the will that he wants to make, a will contest often results. A will is contested because the contestant believes that the will is not the true will of the testator. In other words, it does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty. In this general article, we will discuss reasons for contesting a will (Grounds), limitations for contesting a will (Time Limits), what you need to do to contest a will (Procedure) and what happens to the estate if the contest is successful (Effect of Successfully Contesting a Will).

Grounds for will contest

Execution and form

A will has to be in writing, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a will involve wills that were prepared by individuals instead of attorneys. A person will type out a will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of wills, many of these wills are set aside because of mistakes in the form or because of improper execution.

Additional information on execution and form

1. Order of signing wills.
2. Lost wills.
3. Effective date of will.
4. Obtaining copies of wills.
5. Revoked wills.
6. Where is the will signed.
7. Contracts to make wills.
8. Beneficiaries as witnesses to will.
   
9. Lawyer who prepared will as beneficiary.
10. Replacing pages in will.

Testamentary capacity

In order to make a will, the testator must have testamentary capacity. That means that he must know what he is doing and also know who the natural recipients of the estate would be. There are variations of testamentary capacity that may be referred to as insane delusion or mistaken in the factum. The fundamental basis of these claims is that the testator did not have the mental capacity to know what he was doing when he made his will. Therefore, the will is not the will of the testator.

Undue influence

Undue influence means that the testator is so controlled and dominated by another that he can't make his will the way he wants to but has to make it the way the person who is a dominating him wants him to make the will. Fraud in the inducement is just another type of undue influence.

Forgery

If a will is forged, it cannot be the will of the testator.

Additional information on forged wills

1. Are forged wills good for something?

Time Limits for contesting wills

The time limits within which a will must be contested are determined by the probate process, not the date of death. The time starts to run from the date that the will is admitted to probate.

Additional information on time limits for contesting wills

1. The time limits when the will is contested before it is admitted to probate.
2. The time limits when the will is contested after it is admitted to probate.
3. The time limits when a new will is found after another will has been admitted to probate.

Procedure to contest a will

Because of the time limits for contesting will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.

Additional information on the procedure to contest a will.

1. You need to hire an attorney to represent you.
2. You have to be an interested party.
3. What to do if there is a "no contest" clause in the will?
   

Effect of Successfully Contesting a Will

When a will is successfully contested, the testator is treated as if he died intestate (without a will.) The court will then distribute the estate to those who would take on intestacy.