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Legal standing and grounds: Who can file a will contest and why?

As an attorney, I sometimes receive inquiries from potential clients who want to challenge the will of a recently deceased person. I invariably end up disappointing these people when I tell them that a will contest is not only expensive but also very hard to win. Why? To begin with, only a handful of people in any given case have the legal standing to file a will contest. Moreover, the legal grounds for such challenges are very limited.

Only interested parties whom the ruling of a court would directly affect have the legal standing to contest a will. These parties include beneficiaries named in an earlier will as well as disinherited heirs at law, i.e. the people who, by law, would receive part of an estate but were excluded through the will. Wills are most often contested by spouses or ex-spouses, but children and parents of the testator also have legal standing.

Some of the more commonly used arguments for contesting a will are that the testator lacked the capacity to sign it, or that he or she was under undue influence or tricked into signing it. These claims are hard to prove. For example, the fact that a person was showing signs of dementia, that she was forgetful and failed to recognize friends, doesn’t mean that she didn’t have the capacity to sign a will. A court will, of course, strike down the validity of a will if the challenging ┬áparty can prove that it wasn’t signed in accordance with state laws. In California, two witnesses need to be present when a typewritten will is signed, and they, too, must sign. The witnesses must be adults, and they may not inherit under the will in question.

The proceedings for will contests are straightforward and similar to those in civil cases. The person challenging the will files a complaint with the probate court, and the executor of the estate must then defend the will as lawful. The court will decide to uphold or strike down the validity of the entire will or of parts of it. In the rare event  that it throws out a will, the estate will be distributed according either to state law or to an older will if there is one.

What does all this mean for you? Well, if you’re an heir or see yourself as a potential heir, I suggest you think twice before challenging another person’s will. If you’re writing your own will, I can assure you that the chances of anyone contesting it successfully are minimal. Should you still fear a lawsuit, maybe because you’re seriously ill and think that someone might later question your competence, a good attorney can certainly help you make things airtight.

By Kevin J. Moore