In the movies and in general people think you can contest or “fight” a will because you aren’t getting what you deserve or what you want. But there are specific grounds on which you can contest a will.
First, to contest a will, you need to have standing, but what does that mean? Standing means you have an interest in the case. To have standing, you need to be an interested person to the will. An interested person would be an heir-at-law, such as a son, daughter, spouse, or a beneficiary listed in the will, which could be anybody. It could be a charity. It could be a friend. If you’re listed in the will, or if you’re a close relative, that would be an heir-at-law. You’re an interested person, and you can contest the will.
When you’re first notified there’s a will at probate court, there’s a certain time limit you need to respond within, because if you don’t respond, they will assume that you are consenting to the will. So, if you have standing, you need to timely file your contesting of the will.
Now, onto the grounds to contest a will. There are four main grounds to contest a will; lack of legal formalities, the testator lacked mental capacity to make a will, undue influence, and fraud.
First, is it lacks legal formalities. For example, if the state requires two witnesses to a will, and there’s only one witness, that’s a problem. That’s an invalid will because it doesn’t meet the legal formalities of what a will needs to have to be valid.
The second one is the testator, who is the person making the will, lacked mental capacity to make the will. This could be somebody that has dementia and is just writing things down, and it may meet the formality of a will. They may have signed it. There may be two witnesses, but they don’t have the mental capacity to make the decisions they did in the will, so they can’t execute a will. You need to have capacity to write the will.
The next ground for contesting a will is undue influence. Now, this is a little bit more complicated. I’m going to get into undue influence in a future article, but basically it is when there is some sort of influence on the person, and it unduly influences them to the point where this will is not a reflection of their true desires. There’s some outside force coming in and making them create something that really isn’t their true desire. It could be something where at the time they may say, “This is exactly what I want,” but, there’s some sort of pressure. There’s something that’s making them do this, and in all reality, it’s not their true desires.
The final grounds to contest a will is fraud. The most common time when fraud comes up is when someone that’s in the will now, a new beneficiary, says something to the testator, the person writing the will, and the statement that they make to them is false, and because of that false statement, the person writing the will changes something in their will. That is an example of fraud in the will.
As you can see, these are pretty specific grounds you can contest under, and there really aren’t any other ones. You need to have standing to contest.
If you know anybody that wants to contest a will, you should share this article or video with them, so they understand the basics, because you can’t contest a will simply because you don’t like what you’ve got, or you think you should get more. That’s not a reason to contest a will. It will be thrown out as that’s not a grounds to contest it.
If you would like to discuss this topic more, you can schedule a 30 minute in-person or phone consultation.
William C. Deveneau is an attorney practicing in Southern Vermont, including Bennington and Manchester, and New York, including Albany, Colonie, Hoosick Falls, and Troy.