Any estate lawyer will tell you that not just anyone can challenge a valid will. When it comes to the law governing wills (in most states) only interested persons may submit a challenge. Yet, even interested parties must have a sound legal basis for contesting a will. Therefore, a will challenge must be done by the right person for the right reasons.
Defining Interested Persons
In general, those challenging a will must have a legal interest in the decedent's estate. This usually includes spouses, children, other family members or creditors. In simple terms, you must be an intestate heir, or a beneficiary of a previous or current will.
A will challenger must prove that he or she has standing to carry out a contest. In order to have standing you must show that you had something to gain or lose by the invalidation of the will. Alternatively, you can show that you would be eligible to inherit under intestate succession. Parties who are specifically named on a will document will usually have standing.
Likely Parties to a Will Contest
Beneficiaries, or those listed in a will, do not have problem establishing standing. They are usually the close relatives of the decedent. However, it is not necessary that one be a relative in order to be a beneficiary. Even organizations or household pets can be beneficiaries of a will.
The next group of potential challengers are heirs. A person is an heir if he or she would inherit from the estate if a will was never executed. The laws of intestacy would grant a piece of the estate to each heir. Therefore, they have a potential legal interest in the administration of the estate. Heirs are usually relatives of the decedent. Yet, even heirs who are not named in a will may be able to challenge an existing will.
Minor children or relatives may also contest a will. Since minors cannot participate in legal proceedings most state laws require that they attain a certain age before initiating a contest. In some cases a minor may assert a challenge through his or her legal guardian.
The Effect of "No Contest" Clauses
Some testators choose to include a will provision that discourages future challenges. This is known as a "no contest" clause. These clauses were originally intended to disinherit those who asserted an unfounded will contest. Yet, a knowledgeable probate lawyer will advise that these clauses are usually not enforceable.
If you are considering a will contest, or are affected by one it is important to work with an experienced lawyer. Estate law is a complicated subject. As such, it is best to consult an estate attorney such as those at Spencer and Jensen, LLC.