Will contest

Will contest

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part.

In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence.

A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy.


Standing to contest a will

Typically, standing to contest the validity of a will is limited to two classes of persons:

  1. Those who are named on the face of the will (i.e. any beneficiary);
  2. Those who would inherit from the testator if the will was invalid

The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.

Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.

Grounds for contesting a will

The most common grounds, or reasons, for contesting a Will are:

  • Lack of disposing mind and memory or Testamentary capacity
  • Insane delusion
  • Duress
  • Fraud
  • Undue influence. Undue influence typically involves a trusted friend, relative or caregiver who actively procures a new will. For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.[1] In most states, including Florida, if the challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence.[2]

Some jurisdictions permit an election against the will by a widowed spouse or orphaned children. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.

Practicability of contests

Courts will not necessarily look to "fairness" during will contests. In other words, just because the provisions of a will may seem "unfair" does not mean that the will is invalid. Therefore, wills cannot be challenged simply because they seem unfair. The decedent has a legal right to dispose of his or her property in any way that is legal. Due to a large number of will contests, judges are often wary of contests especially when involving the willing of property to charitable organizations[citation needed].


Depending on the grounds, the result may be

  1. Invalidity of the entire Last Will and Testament, resulting in an intestacy.
  2. Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres.
  3. Diminution of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.

See also

External links


Wikimedia Foundation. 2010.

Look at other dictionaries:

  • will contest — n: a dispute or proceeding (as a trial) begun by one who objects to probate of a will on the ground that it is invalid see also no contest clause ◇ The party who contests the will has the burden of proof, and the personal representative of the… …   Law dictionary

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  • will contest — See contest …   Ballentine's law dictionary

  • will contest — noun A legal action brought to dispute the validity of a will …   Wiktionary

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  • Contest — A contest is an event in which at least two teams or individuals compete. There may be an award to a winner or awards for multiple top performers, but a contest may be imposed for training. A contest may occur naturally, or be planned by the… …   Wikipedia

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