Time limits to contest a will

The time limits for opposing a will, what the law refers to as the statute of limitations, is complicated.  It is complicated because the time limits center around the date that the will is admitted to probate, not the date of death of the testator.  See the article on the probate process to become familiar with how a will is probated.

You can oppose a will filed for probate at any time before it is admitted to probate.  For instance, the testator is incompetent.  Someone who has control over the testator makes the testator sign a will even though the testator doesn't know what he is doing.  The testator dies and the proponent of the will files it for probate.  A person who opposes that will can oppose the probate at any time before it is admitted to probate.  After a will is admitted to probate, time limits for contesting the will apply.

The basic rule is that a person has two years from the date a will is admitted to probate to contest it.  That seems simple enough.  However, the proponent of the will has four years after the death of the testator to file the will for probate.  If the proponent files the will just before the four years is up, the contestant will have two years after that to contest the will (six years after the death of the testator!)  To complicate matters even more, a person who is not at fault can file a will more than four years after the death of the testator.  "Not at fault" usually means that the person who files the will for probate after four years did not know about the will during the four years after the testator's death but found it later.  If a person knows about the will and just doesn't file it, he is usually at fault and can't file it after four years elapses.  As with all rules, there are exceptions.  If the person knew about the will but was told by his lawyer that he didn't need to file it, he may not be at fault and may be able to file the will after four years.  In any event, the contestant can challenge the will within two years of the date that it was admitted to probate.

If a person finds an earlier will than the will that is filed for probate and thinks that the earlier will is the true will of the testator, he has two years from the date that the later will was admitted to probate to file the earlier will for probate.  This operates as a contest of the later will.  If a person finds a later will than the one admitted to probate, he has four years after the death of the testator to file the will for probate.  Filing a later will executed after the  earlier will that has been admitted to probate, is not considered a "contest" and is not governed by the two year statute of limitation for will contest.  The later will can be filed within four years of the testator's death or later if the person filing the will is not at fault.

Burden of Proof.  If a will is opposed before it is admitted to probate, the proponent of the will must prove that it is a good will, executed with the formalities required by law, at a time when the testator was competent and that it has never been revoked.  After the will has been admitted to probate, the contestant has the burden to show that the will is not good, that it was not executed with the formalities required by law, that the testator was not competent or that the will has been revoked.

If you have questions about the time limits to oppose an unfair will that may cause you to lose your inheritance, click on the "Contact Us" tab at the top and send you questions to us.