Will Contests

Dad just passed. You are mailed a “Notice of Probate of Will, of Appointment of Executor, and Notice to Creditors” naming your sibling (who lived closer to Dad) as Executor of your Dad’s Estate. You call the lawyer who issued the Notice, and are shocked to learn that your Dad’s Will left almost everything to your sibling/Executor, and you get virtually nothing.


You have two choices- you can do nothing and allow the Court to follow the Will; or you can “contest” the Will.

What are the “basics” of a Will Contest?

A Will contest is a lawsuit instituted by one or more heirs. The lawsuit must be filed within the later of: four months after the admission of the Will to Probate or thirty days following the heir’s receipt of the Notice. A court cannot consider any Will contest filed after these time frames expire. Hence, it is necessary to act quickly after the receipt of the Notice. The suit is tried as an action at law, and can involve a jury.

In the lawsuit, the party challenging the Will has the “burden of proof” to show, by a “preponderance of the evidence” (this is a lesser standard than “beyond a reasonable doubt”) that the Deceased:

  • Did not properly execute the Will; or
  • Lacked the required “testamentary capacity” to execute a Will; or
  • Was “unduly influenced” to execute the Will.

Although occasionally there are will challenges based on execution of the Will, will contests based on either, or both, lack of “testamentary capacity” and “undue influence” are far more common.

What is “lack of testamentary capacity”?

It is important to note that just because the dispository provisions of a Will seem to be “irrational” does NOT necessarily mean that the deceased lacked testamentary capacity.

An individual lacks testamentary capacity, if, at the time of execution of their Will, they do NOT:

  • Understand the nature of the instrument they are executing;
  • Know and understand the nature and extent of their property;
  • Remember the natural objects of their bounty (i.e. their direct family members); and
  • Know the disposition they are intending to make. An

An individual can lack testamentary capacity without being “insane”.

What is “undue influence in drafting and/or executing of the Will”?

It is important to note that just because the dispository provisions of a Will seem to be “unfair” does NOT necessarily mean that the deceased was subjected to undue influence in drafting and/or executing of the Will.

In order for a Will to be invalidated because of “undue influence” the heirs would have to show (again, by a preponderance of the evidence) that, at the time of execution of their Will:

  • The Individual was susceptible to undue influence,
  • The beneficiary had the opportunity to exercise such influence and effect the wrongful purpose,
  • The beneficiary had a disposition to influence the individual unduly for the purpose of procuring an improper benefit,
  • The Will must clearly appear to be the effect of undue influence,
  • The beneficiary in fact had dominance over the individual,
  • The individual’s mind at the time of execution of the Will was such that they were subject to the beneficiary’s dominance,
  • The general character of the disposition of their property is such that it “looks” like there was undue influence, and
  • The actions of the beneficiary in connection with making of the New Will appear to have been coercive.

A suspicion, but not a presumption, of undue influence arises where the dominant party participates in either the preparation or execution of the contested Will.

The act of undue influence is rarely witnessed; therefore, the common situation is one where undue influence is proven by “circumstantial” evidence.

What happens if the heir’s lawsuit is successful?

  • When two Wills exist and a party challenges only the later one, and wins, the earlier Will stands as the testator’s Will. Hence, the old Will (if there is an original in existence) “stands”. The parties may also challenge the previous Will in the same proceeding.
  • When there is no prior Will, the individual’s property passes pursuant to the intestacy statute.

What evidence is required for a successful Will contest?

It is normally necessary to get testimony from friends and family who knew the deceased, and had first hand knowledge of their situation. It is particularly relevant if at approximately the time the Will was signed:

  • They observed the deceased being confused over normal daily activities;
  • They observed the deceased being “dominated” by the purported beneficiary;
  • They observed the purported beneficiary acting on behalf of the deceased;
  • They had knowledge of actions of the purported beneficiary making transfers of the deceased’s property to themselves without the consent of the deceased;
  • The deceased said something to them that would indicate the lack of testamentary capacity or the existence of undue influence;
  • The deceased said something to them that would indicate the Will did NOT reflect the testamentary desires of the deceased;
  • They have knowledge of co-mingling of property between the deceased and the purported beneficiary.

Because “capacity” and “undue influence” are so subjective, it is often necessary to obtain expert testimony from the deceased’s personal physician, psychologists and/or psychiatrists (and other health care providers), as well as from accountants. The costs of these experts can be significant.

Is there an alternative to a Will contest?

The best alternative to a trial on a Will contest is for the parties to agree to a “family settlement” as to how the estate will be distributed. This may, but does not necessarily, involve mediation. The agreement is subject to court approval, which, if all parties are in agreement, is rarely if ever refused.

Because of the short time frame in which to bring a Will contest (considered above), it is often necessary for one party to file the Will contest to protect their rights in the event a family settlement agreement is not reached on a timely basis.

If you, or someone you know, are in need of legal services regarding a Will contest please feel free to contact the Kreamer Law Firm, P.C. through our website or by calling 515-727-0900.

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