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) or that the will is otherwise invalid. 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 in part.

Only a very few wills are contested: their success rate is less than 1%.[1] Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".[2]

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. Such no-contest clauses are permitted under the Uniform Probate Code, which most American states follow at least in part. However, since the 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 or valid only if a will is contested without probable cause.[3]

Will contests are more common in the US States than in other countries.and so this article mainly discusses American law and cases. This prevalence of will contests in the US is partly because American laws give people an unusual degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself".[4] Most other legal traditions enforce some type of forced heirship, requiring that a testator leave at least some assets to their family, particularly the spouse and children.[5]

Standing to contest will

Typically, standing in the United States 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 (any beneficiary);
  2. Those who would inherit from the testator if the will was invalid

For example, if 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 such 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, as Ross will inherit Monica's property if Chandler's behavior disqualifies Chandler from inheriting (however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, as 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 so is barred from contesting the will altogether.

Grounds for contesting will

These are the most common grounds, or reasons, for contesting a will:

Some jurisdictions permit an election against the will by a widowed spouse or orphaned children. That 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.

In the United Kingdom, wills are often contested on the basis that a child of the deceased (or somebody treated as such) was bequeathed nothing or less than could reasonably be expected.


In the United States, research finds that 0.5–3% of wills are contested. Despite that small percentage, it is a substantial number, given the millions of American wills probated every year.[5] As of the mid-1980ss, the most common reason for contesting a will is undue influence and/or supposed lack of testamentary capacity, accounting for about three quarters of will contests; another 15% of will contests are based on an alleged failure to adhere to required formalities in the disputed will; the remainder of contests involve accusations of fraud, insane delusion, etc.[26]

The vast majority of American will contests are not successful,[1][27] in part because most states tend to assume that a properly-executed will is valid, and a testator possesses the requisite mental capacity to execute a will unless the contesting party can demonstrate the contrary position by clear and convincing evidence.[5] Generally, proponents of a will must establish its validity by a preponderance of evidence, but those contesting a will must prevail by showing clear and convincing evidence, the latter requiring a much higher standard of proof.

Contesting a will can be expensive. According to a Boston-area estate planning attorney quoted in Consumer Reports (March, 2012), "A typical will contest will cost $10,000 to $50,000, and that's a conservative estimate".[2] Costs can increase even more if a will contest actually goes to trial, and the overall value of an estate can determine if a will contest is worth the expense. In some cases, the threat of a will contest is intended to both pressure the estate into avoiding the expense of a trial and forcing an out-of-court settlement more favorable to disgruntled heirs.[4] However, those who make frivolous or groundless objections to a will may be forced to pay the costs for both sides in the court battle.[1]

Courts do not necessarily look to fairness during will contests, and a considerable portion of will contests are initiated by those who have no cause of action justifying a court case but are instead reacting to "hurt feelings" of disinheritance.[28] 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 a beneficiary believes the inheritance or lack thereof is unfair.[2] In the United States, the decedent generally has a legal right to dispose of property in any way that is legal. The large number of will contests makes judges often wary of contests especially when they involve the willing of property to charitable organizations .


Depending on the grounds, the result of a will contest may be:

  1. Invalidity of the entire will, resulting in an intestacy or reinstatement of an earlier will.
  2. Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest by 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


  1. 1 2 3 Miller, Robert K. (ed). Inheritance and Wealth in America, Springer Science & Business Media, 1998, p 188
  2. 1 2 3 Consumer Reports Money Adviser, "How to contest a will: Do you think you were cheated out of an inheritance? You might be able to challenge the will". March 2012, accessed 2015-02-25
  3. Uniform Probate Code (UPC) § 2-517. Penalty Clause for Contest, replicated at § 3‑905. Penalty Clause for Contest. Both found at University of Pennsylvania Law School website page on Uniform Probate Code. Accessed October 5, 2009.
  4. 1 2 3 4 Ronald J. Scalise Jr., Undue Influence and the Law of Wills: A Comparative Analysis, 19 DUKE J. COMP. & INT’L L. 41, 99 (2008).
  5. 1 2 3 Ryznar, Margaret and Angelique Devaux (2014). "Au Revoir, Will Contests: Comparative Lessons for Preventing Will Contests." Nevada Law Journal, Vol. 14 No. 1, Jan 2014
  6. "The [California] Court of Appeal also emphasized the long standing rule that the threshold for testamentary capacity is fairly low – lower than that for contractual capacity...."
  7. In re Hatzistefanous's Estate, 77 Misc. 2d 594 (1974).
  8. In a Michigan case, the state Supreme Court decision read, "A man may believe himself to be the supreme ruler of the universe and nevertheless make a perfectly sensible disposition of his property, and the courts will sustain it when it appears that his mania did not dictate its provisions." See Fraser v. Jennison, 3 N.W. 882, 900 (Mich. 1879)
  9. In a Nebraska case, the court ruled that "gross eccentricity, slovenliness in dress, peculiarities of speech and manner or ill health are not facts sufficient to disqualify a person from making a will." See 'In re' Estate of Frazier, 131 Neb. 61, 73, 267 N.W. 181, 187 (1936).
  10. Estate of Goetz (1967) 253 Cal.App.2d 107, Justia.com, accessed 2015-02-03
  11. Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958)
  12. How to Prove Undue Influence
  13. Core v. Core's Administrators, 124 S.E. 453 (Va. 1924).
  14. Carter v. Williams, 431 S.E.2d 297 (Va. 1993), from Justia.com accessed 2015-02-03
  15. In re Putnam's Will, 257 N.Y. 140 (1931)
  16. Hooper v. Stokes, 145 So. 855 (Fla. 1933).
  17. In Re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983)
  18. In re Heaton's Will, 224 N.Y. 22 (1918)
  19. Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006).
  20. Kelly v. Settegast, 2 S.W. 870 (Tex. 1887)
  21. Bailey v. Clark, 561 N.E.2d 367 (Ill. 1990)
  22. Utah Code Annotated, Title 75 Chapter 2 Section 502
  23. In re Pavlinko's Estate, 394 Pa. 564 (1959), Summary from Casebriefs.com, accessed 2015-02-03
  24. Arden, Dale Forged Wills Are Now Not Just Fiction, accessed 2015-03-02
  25. "The Shipman tapes I". BBC News. 31 January 2000. Retrieved 27 September 2008.
  26. Schoenblum, Jeffery A. (1987). "Will Contests—An Empirical Study", 22 Real Prop Prob &Tr. J. 607, 647–48
  27. "Wills are seldom contested, and successful contests are extremely rare" Fleming, Robert (1997). "Will Contests Not Frequent, Cheap or (Often) Successful" Fleming & Curti, PLC, Legal Issues Newsletter, accessed 2015-03-07
  28. Williams, Geoff (2013). "Disinheriting Someone Is Not Easy", Reuters 31 Jan 2013, accessed 2015-03-07
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