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Wills, trusts, and estates

contesting a will

The laws regarding will contests or contesting a will vary from state to state and are generally located in a state’s statutes (often the estates code or probate code) and in the state’s court opinions or case law (common law). A state's laws may recognize some but not all of the will challenges described below, and some states may recognize additional grounds for contesting a will (or other dispositive instrument that disposes of or transfers property).

Potential Grounds for Contesting a Will

Application to Probate Will Was Untimely

An application to probate a will generally must be filed after the testator (person who made the will) has died, and within some period defined by statute after the testator's death (for example, 4 years).

Will Was Executed Without Required Formalities

A will must be properly executed to be admitted to probate. The required formalities are usually specified in a state's statutes and may include that the will be signed by the testator (or by someone at the testator's direction on behalf of the testator) and in the presence of one or more witnesses who are also required to sign the will.

Will Was Executed Without Testamentary Intent

A will must be executed with testamentary intent (intent to make it a will) to be valid. Thus, a document in which the decedent instructs an attorney to write the decedent's will with certain gifts (devises and bequests) included may not have the required testamentary intent for that document of instructions to be a will.

Testator Lacked Capacity to Make Will

To make a valid will, a person must have the capacity to make a will at the time of execution of the will. Laws vary from state to state but to have such capacity a person generally must be of sound mind and (1) be 18 years of age or older; or (2) be married, or previously married; or (3) be a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.

Undue Influence

Laws vary from state to state but to set aside a will because of undue influence, the person contesting the will (the will contestant) generally must prove the following three elements:

• the existence and exertion of an influence;

• the effective operation of that influence to subvert or overpower the testator's mind at the time of the execution of the testament (will); and

• the execution of a testament that the testator would not have executed but for such influence.

Thus, the party claiming undue influence must introduce some tangible and satisfactory proof of the existence of each of these elements.

But not every influence exerted on a person is undue. In fact, an influence is not "undue" unless it destroys the free agency of the testator and the will produced expresses the wishes of the one exerting the influence. One may request or plead with another to create a favorable dispositive instrument (will), but unless the requests or pleas are shown to be so excessive as to subvert the will of the testator, they will not taint the validity of the instrument.

Establishing the existence of undue influence generally involves inquiry into factors such as:

• the circumstances surrounding execution of the instrument;

• the relationship between the testator and the beneficiary and any others who might be expected recipients of the testator's bounty;

• the motive, character, and conduct of the persons benefitted by the instrument;

• the participation by the beneficiary in the preparation or execution of the instrument;

• the words and acts of the parties;

• the interest in and opportunity for the exercise of undue influence;

• the physical and mental condition of the testator at the time of the will's execution, including the extent to which the testator was dependent upon and subject to the control of the beneficiary; and

• whether the influence resulted in an unjust, unreasonable, or unnatural disposition of the property.

A person contesting a will (will contestant) may prove undue influence by circumstantial evidence, but it must be probative of the issue and not merely create a surmise or suspicion that such influence existed at the time the will was executed. The exertion of undue influence cannot be inferred by opportunity alone. Instead, there must be some evidence to show that the influence was not only present, but that it was in fact exerted with respect to the making of the testament (will) itself.

Influence that was or became undue may be in the form of intimidation, duress, excessive persistence, or deception used to overcome or subvert the will of the testator and induce the execution of a will contrary to the testator’s intent. Some courts treat the exertion of such influence in the execution of a dispositive instrument such as a will as a type of fraud.

The exertion of influence that was or became undue is usually a subtle thing, and by its very nature usually involves an extended course of dealings and circumstances. Thus, the elements establishing undue influence may be proved by circumstantial evidence as well as by direct evidence.

In the absence of direct evidence, all of the circumstances shown or established by the evidence should be considered—and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the challenged will, the evidence may be sufficient to make such a conclusion.

But the circumstances relied on as establishing the elements of undue influence must not be equally consistent with the absence of the exercise of such influence. This is so because a will executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing.

Determining whether there was undue influence generally includes evaluating the nature and type of relationship between the testator, the will contestant, and the party accused of exerting such influence. Proving undue influence generally includes testimony and communications that demonstrate:

• opportunity for the exertion of the influence or deception;

• the circumstances surrounding the drafting and execution of the will;

• the existence of a fraudulent motive; and

• whether the testator has regularly been subjected to the control of another person.

Words and acts of the testator may be evidence of the testator’s mental state. Likewise, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in establishing this element of undue influence.

Finally, proving that the will that was executed would not have been executed but for such influence generally depends on whether the will that was executed is unnatural in its terms of disposition of property.

Courts have recognized that it is impossible to lay down hard and fast rules on what facts affirmatively establish undue influence. No definition can embrace all forms and phases of that term. Some courts have noted that undue influence can compel a testator to act against his will because of his desire for peace.

Undue influence need not be accomplished forcibly and directly, as at the point of a gun. It is more often exercised by subtle and devious (but no less effective) means such as deceit and fraud. Although undue influence may be exercised consistently and successfully over a long period of time, such influence or deception need only be exercised immediately prior to the execution of the will in question.

A will generally cannot be set aside on proof of facts that only show an opportunity to exercise undue influence. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing.


A will can be contested on the ground that it is a forgery—but suit generally must be filed within a certain period such as two years from the date the forgery was discovered. And forgery with the intent to defraud or harm another—at least for a certain amount of money—is a felony criminal offense in many states.

Laws and the definition of forgery vary from state to state but “forge” generally means to alter, make, complete, execute, or authenticate any writing so that it purports:

• to be the act of another who did not authorize that act;

• to have been executed at a time or place or in a numbered sequence other than was in fact the case;

• to be a copy of an original when no such original existed;

• to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged; or

• to possess a writing that is forged with intent to pass, offer, or use the forged document (in legal jargon, with the intent to “utter it”).

A Contingency in the Will Has Not Occurred

A contingent will is a will that will take effect only upon the happening of a specified contingency. In a contingent will, the court must determine whether the happening of the contingency is a condition precedent to the operation of the will, or whether the arguably contingent language was only a statement of the motive or inducement that led to the preparation and execution of the will.

The court may also examine the character of the bequests (gifts) in determining whether the testator intended a contingent will. The operation of a contingent will is defeated by the nonoccurrence of the contingency.

If the contingency mentioned is a condition precedent to the validity of the will, the contingency must have taken place in order to entitle the will to probate; if the possibility mentioned is only the inducement that prompted the making of the will, then the will is effective upon the testator's death even though the event does not take place.

For a will to be contingent, it must reasonably appear that the testator affirmatively intended the will not to take effect unless the given contingency did or did not happen, as the case may be. The condition must be clearly expressed by appropriate language or by necessary implication. The character of the bequests may be examined to determine whether a contingent will was intended.

Thus, a will can be contested on the ground that it is a contingent will and the specified contingency did not occur.

Will Was Obtained by Fraud

Fraud is present when the testator is misled as to the nature or content of the instrument (will) executed.

Undue influence and fraud in the inducement of a will (or other document that disposes of or transfers property) are sometimes viewed as separate and distinct grounds for invalidating a will. But some courts treat the two as one, viewing undue influence as a species of fraud.

Probate of the Will is Barred by a Family Settlement Agreement

In some states the beneficiaries of a will may agree among themselves as to the distribution of the property left to them and agree not to probate the will. This is the family settlement doctrine—also known as informal probate—and is supported by the general principle that the property belongs to the beneficiaries under the will and since they may divide the property as they wish (by transfers made immediately after the distribution), there is no reason why they may not divide it by agreement before they receive it in the regular course of judicial administration of the estate.

For this reason—and because such agreements tend to put an end to family controversies by way of compromise—family settlement agreements are favored in law. And in some states a family settlement in which all heirs and beneficiaries agree that a purported will shall not be probated is valid and enforceable.

Thus, a will can be contested on the grounds that the person offering the will for probate (proponent of the will) agreed in a family settlement agreement not to probate the will.

Mistake of Law or Fact Is Not Grounds for Contesting a Will

A mistake of law or fact alone will not defeat the probate of a will, even though the testator would have made a different will but for the mistake inducing the making of the will. But a mistake of law or fact, coupled with undue influence or fraud perpetrated upon the testator, is sufficient to deny the probate of a will.

Will Contestant Must be a Person Interested in the Estate

A will contestant generally must allege that the contestant is a person interested in the estate. A person interested in the estate has standing to contest a will. The issue of a will contestant's interest in the estate is to be tried separately and in advance of the trial on the issues affecting the validity of the will.

Generally, an interested person is:

• an heir;

• a devisee (beneficiary under the will);

• the decedent's spouse;

• a creditor of the estate;

• any person with a legally determined financial interest that will be impaired, benefited, or affected by the probate of the will;

• anyone interested in the welfare of an incapacitated person, including a minor; or

• any other person having a property right in or claim against the estate.

In Texas, will contests are governed by the Texas Estates Code, which outlines the procedures and grounds for contesting a will. A will must be filed for probate in a timely manner, typically within four years of the testator's death. The will must be executed with the proper formalities, including being signed by the testator and witnessed. The testator must have testamentary intent and the capacity to make a will, which generally requires being of sound mind and at least 18 years old, married, or a member of the armed forces. Grounds for contesting a will include undue influence, where the will contestant must prove that the influence subverted the testator's mind at the time of execution and resulted in a will that does not reflect the testator's true intentions. Other grounds include forgery, fraud, the non-occurrence of a contingency for a contingent will, and a family settlement agreement that precludes probate. Mistakes of law or fact alone are not grounds for contesting a will unless coupled with undue influence or fraud. Only interested persons, such as heirs, devisees, spouses, creditors, or others with a property right or claim against the estate, have standing to contest a will.

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Contesting a Will: What You Need to Know
Contesting a will is a legal challenge against the validity of a will presented in a probate court. Wills and trusts are fundamental legal documents outlining how a person's assets should be distributed after death.