You’ve seen this dramatic moment play out a dozen times or more in movies and television shows: a family gathers for the reading of a will; the attorney announces its provisions; everyone gasps. The expected heir has been disinherited; he storms out, declaring, “I’ll see you in court!” But will challenges are not just the stuff of melodrama, and they are not as easy as you might hope. Courts hesitate to overturn wills because they are presumed to express the wishes, the will, of the testator. If you wish to mount a challenge to a will, you need to establish both your standing and sufficient grounds for the challenge.
Standing to Challenge
The first obstacle to overcome is demonstrating your right or ability to challenge a will. While the details of probate law vary from state to state, you may challenge a will if you would have been an heir but for the will, or if you are otherwise a beneficiary of the will. A court will consider whether you would have been in line to inherit if the testator had died without a will. Every state has different intestate succession laws to govern this matter, but typically, surviving spouses, children, or other relatives may be able to show that they would have been the testator’s heirs. You also may have standing to challenge a will if you are named as a beneficiary but you do not inherit what you feel is the appropriate amount. You also may challenge a will if you can prove you were a beneficiary in a prior will; you may then seek to invalidate the current will.
Grounds for Challenge
It is not enough, however, to show that you are the right person to challenge a will. You also must provide the right reasons to support a challenge. In general, a will may be invalidated if the testator did not understand the provisions or effect of the will, or if the testator was manipulated or tricked by someone else. The most widely accepted reasons for will challenges are that the testator lacked the capacity to make a will due to illness, injury, senility, or some other impairment, or that the testator was subject to undue influence by another person in making the will. Some jurisdictions recognize other grounds for challenging a will, such as the absence of witnesses or lack of a date. Be sure to know what grounds for challenge your state recognizes before plunging into a will contest.
Problems in Challenging a Will
The procedures for challenging a will can be expensive. Between court costs and attorney fees, a will challenge can cost thousands of dollars, and it can take years to resolve. The executor of a will can pay for legal fees out of the estate assets. However, if you are not the executor, you must pay for the legal fees out of your own pocket. Of course, there are also personal costs to consider, since you may be suing a family member or friend. Will challenges can have financial and emotional impacts long after the issue is resolved.
Negotiation vs. Litigation
Litigation is not your only option, however. If you are not satisfied with what you have received in a will, the best way to deal with this matter is to retain counsel to establish your claim and contact the attorney for the estate. It’s possible you may be able to negotiate and avoid litigation. Negotiation is less adversarial and less expensive, and it can help parties reach a compromise that might preserve relationships without depleting bank accounts.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, wills & trusts, and foreclosure defense.