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Who Can Challenge a Will?

Elderly hand fills out and signs a will document

Yes, it is possible to sue a will during the probate process, but not everyone can sue to contest a will.

For instance, you cannot challenge your cousin's will just because you believe his estate would be better off in the hands of another relative. You also cannot contest a will just because you do not believe you received a fair share of the real estate or bank account or some specific piece of personal property.

Can You Sue to Contest a Will in Probate Court?

According to basic probate laws, only "interested persons" may challenge a will, and only for valid legal reasons.

The Probate Code identifies "interested persons" as heirs (family members), beneficiaries, creditors, and other parties who have a property right or claim against the estate being administered.

Valid legal reasons to contest a will include:

  • Incapacity of the deceased person when they wrote the will
  • Fraud or someone exerting undue influence over the testator
  • Insufficient or inappropriate witnesses
  • Unclear provisions of the will
  • The existence of a later valid will

Who Has Standing to Contest a Will?

While laws vary from state to state, all state laws have requirements that must be met before a will contest can take place. The first requirement is "legal standing."

The only person who has legal standing to challenge a will and sue for inheritance is someone who is:

Standing is the first requirement to overcome to contest a will. You must either show that you were named in the will (or should have been) or show that you would have received something of value (typically money) if the person had died without a will.

Beneficiaries Can Contest a Will

Who is a beneficiary of a will? This means those named in the will. This can include a surviving spouse, children, grandchildren, and other relatives, but it can also include friends, faith communities, universities, charities, and even pets. Beneficiaries have the standing to challenge a will.

Heirs Can Contest a Will

Heirs are the most commonly named beneficiaries in a will. Heirs are relatives who would inherit even if the decedent had died "intestate" (without a will). Heirs include spouses, children, parents, grandparents, and siblings.

Heirs can challenge a will if they were omitted or were left with a disproportionate share in the inheritance. Heirs have the standing to challenge a will because they would have received a share of the estate through the laws of intestate.

Minors Can Contest a Will

Minors cannot challenge a will until they have reached the age of majority (typically age 18). This is because minors are not legally able to initiate legal proceedings. A parent or guardian may initiate a lawsuit on their behalf.

What Type of Will Cannot Be Contested?

Any will can be contested if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a "no-contest" clause. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit at all. They are disinherited.

No-contest clauses are not enforced in every state:

  • In some states, if you sue and lose, you can still inherit what you would have inherited if you had not sued.
  • Some states enforce no-contest clauses unless the person bringing the lawsuit has a good reason to sue.

Consult with a local estate planning attorney to learn how your state probate courts handle no-contest clauses.

What Are the Consequences of a Will Contest?

The most obvious consequence of contesting a will is the cost of going to court. Most people will choose to hire a probate litigation attorney to bring a will contest lawsuit to court. Depending on the size of the potential inheritance and the complexity of the case, the expense of a will contest may or may not be cost-effective. Your lawyer can advise you on this.

On the other hand, if the estate is large, it may be well worth the time and money to challenge a will in probate court.

No-Contest Clauses in Wills

If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, that will depend upon whether your state enforces no-contest clauses.

If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case because you would not have inherited anyway.

Personal Implications of Contesting a Will

There may be personal consequences as well. Loved ones may disagree with your decision to bring a lawsuit. They may have different opinions about the decedent's (the person who wrote the last will and testament) mental capacity. And, of course, people and institutions with their own financial interests at stake will likely take issue with the legal challenge.

Have a Probate Attorney Evaluate Your Potential Estate Litigation Case

Sometimes it's not so simple determining who has standing or cause to challenge a will. An estate planning attorney can review a copy of the will and provide legal advice to secure your financial interests. Get the ball rolling today by speaking with a local estate planning lawyer.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified estate planning attorney to help you ensure that your loved ones are cared for and your wishes are honored.

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