Will Contests FAQs

A will contest is a legal proceeding challenging the validity of a will.

A will contest can be started at the time the will is offered for probate by filing a written objection to the probate. After the will has been admitted to probate the will contest must be initiated by filing a verified complaint in Probate Court.

The person contesting the will must post a $500.00 bond. There also may be filing fees charged by the court clerk.

The will contest is to be tried in the county in which the will is admitted to probate.

The person supporting the will has the initial burden of proof to establish the validity of the will.

Once the proponent has produced the will and proven its formal execution and the will has been read to the jury, the burden shifts to the contestant to invalidate the will.

There are numerous grounds upon which a contestant may try to invalidate a will including:

• Lack of testamentary capacity (infancy or unsound mind)
• Fraud or undue influence
• Improper execution or attestation
• Revocation by the testator

Any person of sound mind who is eighteen years of age or older may make a will.

Generally, all that is required to show testamentary capacity is that the testator was aware of the property of which she was giving away and how she was distributing it, knew who the people were who you would normally expect someone to leave their property to, and understood the significance of how she was distributing her property.

Evidence regarding factors such as physical weakness, disease, old age, failing mind or memory, and impaired perception is generally admissible.

Undue influence is that level of influence that goes to the extent of depriving the testator of her free agency (in other words, deprives her of making her own decisions).

The burden of proving undue influence is on the person contesting the will.

• The existence of a confidential relationship between the testator and the beneficiary
• Physical or mental deterioration of the testator
• The testator’s advanced age
• Secrecy concerning the will’s existence
• The unjust or unnatural nature of the will’s terms
• The testator being in an emotionally distraught state
• The beneficiary’s active involvement in procuring the will
• Discrepancies between the will and the testator’s expressed intentions
• Fraud or duress directed toward the testator

Because confidential relationships assume a variety of forms, courts have been hesitant to define precisely what constitutes a confidential relationship. The existence of a confidential relationship together with a transaction by which the dominant party obtains a benefit, gives rise to the presumption of undue influence.

Influence arising from mere acts of kindness and attention does not constitute undue influence unless the acts are carried out with the purpose and design of subjecting the mind of the testator to the influence and direction of the person exercising the influence

In order to rebut allegations of undue influence and/or the presumption established by proof of a confidential relationship and a benefit to the dominant party, the beneficiary must show the fairness of the transaction and the nonexistence of the presumed undue influence

Though seemingly similar, they are conceptually different theories. Fraud differs from undue influence in that it does not override the testator’s free will, but instead induces the testator to exercise that free will in a manner based upon false information

The basis of fraud is misrepresentation or deception. It involves a trick or artifice or the other use of false information to induce a person to dispose of his or her property in a way that he or she would not otherwise have done but for the fraud

A will or any part of the will can be revoked by the following:

• A subsequent will…which revokes the prior will or part expressly or by inconsistency
• Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, which revokes the prior will or party expressly
• Being burned, torn, canceled, obliterated or destroyed, with the intent of the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction
• Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will

No, when probated, the will relates back to the time of the testator’s death.

The only applicable statute of limitations applies to actions to contest or set aside the probate of a will. Those actions generally must be brought within two years from the entry of the order admitting the will to probate.