Updated: January 18, 2024
If you have considered everything carefully, can you be sure everything is done according to your wishes after you die? Not always. Aside from your will being invalidated, another common reason your wishes are not carried out is if your will is successfully contested.
There are ways to improve your chances. Since there has to be a valid legal question about your will for a contest to be considered, the primary method to prevent challenges is to do all that is necessary to assure your will is valid and prevent problems with the probate process.
A will can only be contested during the probate process and requires that a beneficiary file a formal legal challenge against the validity of your will.
The Probate Code states that only “interested persons,” usually family, can legally challenge your will, including any amendments/codicils. In order to be an “interested party” and be able to challenge a will, one needs to have proof that they fall into one of three categories.
Most people challenging your will must file during the probate process. Minors wanting to contest your will must wait until they reach the age of majority (typically age 18), however your will can be challenged on their behalf by an executor or court representative.
Most will contests are initiated by unhappy heirs due to being disinherited, lack of understanding about the process, anger at other beneficiaries (such as siblings), greed or envy, or contradictions between what you said and what the will says. Ultimately it comes down to these four reasons.
For any heirs or beneficiaries to successfully challenge your will, they need to prove there is a legal reason to invalidate it. Being hurt and angry will not get them a hearing if your will is entirely valid.
There are many technical errors that can be exploited to justify a challenge to your will. A mistake or omission of any detail could invalidate parts or all of your will and leave it open to being challenged.
Holographic wills are the easiest wills to challenge.
As long as your will is valid in the state it was created, executing your will in a different state does not invalidate it.
Although included in the “Making Sure Your Will is Valid” section, you may want to give special attention to these reasons for contesting your will.
Contention that you lack Testamentary Capacity is a common reason used by heirs and beneficiaries to justify a challenge.
Concern of the heirs and beneficiaries that:
Concerns that you were under:
Other reasons beneficiaries or others may want to contest your will may include:
If your will is successfully challenged, it can be partially or completely invalidated, but not changed.
The easiest and most effective (but most expensive) way to prevent legal issues that can result in your will being contested is to involve a professional in all of the steps in the process. A less costly option is for you to have a professional look over your completed do it yourself will after it is completed.
If you are determined to do it yourself, make sure you follow the step-by-step plans in the Doing it Yourself section. This is usually outlined in your will template or software, and carefully follow your state’s rules. Here is a list of the more important details to consider, as you go along, to make sure your will is valid.
Invalidate all your prior wills, including any addenda/codicils that may be affected.
Assure that your Testamentary Capacity is not questioned.
Assure there are no claims of undue influence.
There are specific measures you can take that do not affect validity, but can still reduce the risk of a challenge.
Add a Non-contest Clause
Also known as an in terrorem clause, it is a provision in your will stating that if anyone files a lawsuit to challenge what they have inherited in your will, they will receive nothing from your estate if they lose the challenge.
Other alternatives include: