What Is a Will Contest?

A will contest is a legal proceeding in which an interested party challenges the validity of a decedent's will. Will contests are among the most emotionally charged areas of estate litigation, often pitting family members against one another over substantial inheritances. For paralegals working in estate planning or probate litigation, understanding the grounds for contesting a will and the procedural requirements is essential for both practice and the NALA Certified Paralegal exam.

Not everyone can contest a will. Generally, only "interested parties" have standing to bring a will contest. Interested parties typically include beneficiaries named in the will, beneficiaries named in a prior will who were removed or had their share reduced, and intestate heirs who would inherit if the will were declared invalid.

Grounds for Contesting a Will

1. Lack of Testamentary Capacity

Testamentary capacity refers to the mental ability of the testator (the person making the will) to create a valid will. To have testamentary capacity, the testator must generally understand:

The nature and extent of their property
The natural objects of their bounty (the people who would normally inherit, such as a spouse and children)
The nature of the testamentary act (that they are creating a document that disposes of their property at death)
How these elements relate to one another to form a coherent plan for distributing their estate

The standard for testamentary capacity is relatively low compared to the capacity required for other legal acts, such as entering into a contract. A person may have testamentary capacity even if they suffer from certain mental impairments, provided they meet the above requirements at the time the will is executed. Lucid intervals are recognized; a person with dementia or mental illness may still have capacity during a lucid period.

2. Undue Influence

Undue influence occurs when a person exerts such control over the testator that the will reflects the wishes of the influencer rather than the testator's own intentions. Courts consider several factors when evaluating undue influence claims:

Susceptibility: Was the testator particularly vulnerable due to age, illness, isolation, or dependency on the alleged influencer?
Opportunity: Did the alleged influencer have access to the testator and the opportunity to exert influence?
Disposition: Was the alleged influencer inclined to exert undue influence, perhaps motivated by greed or hostility toward other beneficiaries?
Result: Does the will reflect an unnatural disposition, such as disinheriting close family members in favor of a caretaker or recent acquaintance?

Some jurisdictions create a presumption of undue influence when certain relationships exist, such as when the primary beneficiary also served as the testator's attorney, caretaker, or fiduciary. Once the presumption arises, the burden shifts to the proponent of the will to prove that undue influence did not occur.

3. Fraud

Fraud in the context of wills can take two forms:

Fraud in the inducement: Someone makes a false statement of material fact to the testator, which causes the testator to create, modify, or revoke a will. For example, telling the testator that their son has died (when he has not) to induce the testator to leave everything to the person making the false statement.

Fraud in the execution: Someone tricks the testator into signing a document that the testator does not know is a will. For example, presenting a will for signature while telling the testator it is a letter or a different legal document.

4. Improper Execution

Every state has specific statutory requirements for executing a valid will. While these vary by jurisdiction, common requirements include:

The will must be in writing
The testator must sign the will (or direct another person to sign on the testator's behalf in the testator's presence)
The will must be witnessed by a required number of witnesses (usually two), who must sign in the testator's presence
In some states, the witnesses must also sign in each other's presence (attestation)

Failure to comply with any of these requirements can render the will invalid. However, many states have adopted a "substantial compliance" doctrine that allows courts to validate a will that does not strictly comply with all formalities if there is clear evidence that the testator intended the document to be their will.

5. Revocation

A will contest may also be based on the argument that the will has been revoked. Revocation can occur through the execution of a subsequent will that expressly revokes prior wills, physical destruction of the will (tearing, burning, or obliterating), or operation of law (such as when a subsequent marriage or divorce automatically revokes all or part of a will under state statute).

No-Contest Clauses (In Terrorem Clauses)

Can a Will Prevent It from Being Contested?

Many wills include no-contest clauses (also called in terrorem clauses) that provide that any beneficiary who challenges the will forfeits their inheritance. The enforceability of these clauses varies by state. Some states enforce them strictly, meaning a beneficiary who contests the will and loses receives nothing. Other states enforce them only if the contest was brought without probable cause. A few states refuse to enforce no-contest clauses entirely as against public policy.

Paralegals should research the applicable state's approach to no-contest clauses when advising clients about the risks of contesting a will. The potential forfeiture of an existing bequest is a significant consideration in deciding whether to proceed with a contest.

Procedural Aspects of Will Contests

Will contests must typically be filed within a specific statute of limitations period after the will is admitted to probate. This period is often quite short, ranging from a few months to a few years, depending on the jurisdiction. Missing this deadline generally bars the contest regardless of the merits.

The burden of proof in a will contest depends on the ground asserted. In many jurisdictions, the proponent of the will bears the initial burden of proving proper execution. Once this is established, the burden shifts to the contestant to prove the grounds for invalidity (such as lack of capacity or undue influence) by a preponderance of the evidence.

The Paralegal's Role in Will Contests

Paralegals are indispensable in will contest litigation, performing tasks that include:

Gathering and organizing the decedent's medical records to assess testamentary capacity
Interviewing witnesses who observed the testator's mental state and the circumstances surrounding the will's execution
Researching the relationship between the testator and the alleged influencer
Reviewing prior wills and estate planning documents to identify changes in testamentary dispositions
Coordinating with expert witnesses, such as geriatric psychiatrists, handwriting analysts, and forensic accountants
Drafting pleadings, discovery requests, and motions

Strengthen your knowledge of estate planning and probate law with our targeted flashcard sets covering will contests and other key topics.

CP Exam Preparation

Will contests appear on the NALA CP exam within the estate planning and probate section. Focus on the grounds for contesting a will, the elements of testamentary capacity, the factors courts consider in undue influence claims, and the effect of no-contest clauses. Sign up for your free account to start practicing with estate planning questions. Our premium plans provide full access to all exam preparation materials.

Essential Study Points

Testamentary capacity requires understanding of property, natural objects of bounty, and the testamentary act
Undue influence focuses on the influencer's opportunity, the testator's susceptibility, and the unnaturalness of the disposition
Fraud can occur in the inducement (false statements) or in the execution (tricking the testator about the document)
Improper execution involves failure to comply with statutory will formalities
No-contest clauses may or may not be enforceable depending on the jurisdiction

Will Contests and Grounds for Challenging a Will: A Paralegal's Guide