News & Resources: Blog

Contesting a Will: The Process

Published: July 21, 2022

When a loved one dies with a will, it specifies who shall receive their property and who will be in charge of settling their estate (called the executor). For many reasons, beneficiaries can feel slighted by what they did or didn’t receive, and some individuals are entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will is called a will contest (or “contesting the will”).

Once probate is underway, the named executor will take the necessary steps to complete probate and notify beneficiaries named in the will. This legal notice typically limits the time when a beneficiary can contest the validity of the will. Generally, a beneficiary (and even a person not named in the will) has thirty to ninety days to bring legal action against the decedent’s will.

Know that the vast majority of wills pass through probate without issue. The courts rightly view the will as the author’s (testator), last voice. Because the testator can no longer speak to their wishes, the courts try to adhere to the legally filed will stringently. Because of the narrow timeline for filing a will contest and the odds stacked against winning the legal challenge, most challengers will find it a fruitless and costly endeavor.

Under what circumstances then would you want to contest a will? Legally, only a person or entity with “standing” can contest a will. Standing is when the party involved in the will contest will be personally affected by the case’s outcome. Most often, this means an heir or beneficiary already named in the decedent’s last will or any preceding will. It may also include any person (usually a spouse or child) not named in the will, but because of state intestacy laws would be eligible to inherit in the absence of a will. Typically, four grounds are viable for contesting a will:

  • The will’s signing lacked the proper legal formalities
  • The mental capacity of the decedent to make a will is in question
  • Someone leveraging undue influence over the decedent into making or changing a will
  • The will’s procurement is fraudulent

Certain fact patterns may lead to a successful will contest. As an example, if a testator writes their own will, some legal formalities may be overlooked, rendering the will invalid. In particular, the “do it yourself” method for creating a will may not include all of the “what if” scenarios making the will incomplete. In another example, if the testator is experiencing isolation from family and friends, the primary beneficiary’s influence and motives regarding the estate may come into question. If the executor is trying to enforce an outdated will, the newer one should supersede the older one as long as no coercion was involved in writing the most recent version. Finally, some medical evidence may suggest the testator lacked the requisite mental ability to make a will. Occasionally the challenger to an existing will can negotiate a settlement with the estate instead of enduring a court proceeding.

Some wills include a no-contest clause, also called an “in terrorem” clause. This provision states that if anyone files a lawsuit challenging the will’s validity, they will receive nothing from the estate. While this may a powerful deterrent, it may not be allowed in the state where the will is probated.

To protect your will from being contested, even if you have limited assets, your best strategy is to have your will professionally drafted by an attorney well versed in estate planning. Using an attorney can help protect you and your estate from future legal challenges while helping you think through who you want to inherit your money and property, and how each person should receive what they inherit.

If you would like to discuss whether a will is appropriate for you or whether you should update an existing will, please do not hesitate to contact our office at 215-364-1111 to schedule a consultation.

CLIENT Testimonial

Scott Bloom Law Estate Planning Diagram

Sometimes after a loved one passes away, the family learns of things they were unaware of while the loved one was living. This was the case for one of our clients, Sam, after his father Tom Jr. passed away. Sam was always under the impression that the home he had grown up in, and that his father had lived in until his death, was owned by Tom Jr. To say it came as a surprise that it was indeed Sam’s grandfather, Tom Sr., who was the actual owner of the home, is an understatement. 

Apparently, when Tom Sr. had passed away nearly 40 years ago, there was no proper estate plan established. Now, Sam would need to open his grandfather’s estate, resolve tax issues that were never addressed, and then go through the legal process to make the home a part of his father’s estate. At first, Sam believed that the entire process would be easy enough for him to handle on his own. However, after digging a little deeper, he quickly realized he would need the help of a knowledgeable and experienced attorney.

Sam reached out to Scott Bloom Law and we developed a game plan for moving forward. We began by probating Tom Jr.’s will and, after some time, we were able to settle the estates of both Tom Sr. and Tom Jr. While it was no fault of Sam, this is a great example of the importance of having an Estate Plan in place. No one wants to leave their families in precarious situations after they pass. The long-term purpose of setting up an Estate Plan today is to preserve as much of your wealth as possible for the intended beneficiaries and retaining a capable attorney can help ensure all of your wishes are met.

At Scott Bloom Law, we are a team of advocates who care, always fighting for what’s best for our clients and their families. With knowledge, experience, and compassion, we strive to find solutions that make the aging process as emotionally and financially easy as possible. Visit us at scottbloomlaw.com or call 215-364-1111, to talk to find out more.

- Case Study: Estate Administration

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CLIENT Testimonial

Scott Bloom Law Estate Planning Diagram

Sometimes after a loved one passes away, the family learns of things they were unaware of while the loved one was living. This was the case for one of our clients, Sam, after his father Tom Jr. passed away. Sam was always under the impression that the home he had grown up in, and that his father had lived in until his death, was owned by Tom Jr. To say it came as a surprise that it was indeed Sam’s grandfather, Tom Sr., who was the actual owner of the home, is an understatement. 

Apparently, when Tom Sr. had passed away nearly 40 years ago, there was no proper estate plan established. Now, Sam would need to open his grandfather’s estate, resolve tax issues that were never addressed, and then go through the legal process to make the home a part of his father’s estate. At first, Sam believed that the entire process would be easy enough for him to handle on his own. However, after digging a little deeper, he quickly realized he would need the help of a knowledgeable and experienced attorney.

Sam reached out to Scott Bloom Law and we developed a game plan for moving forward. We began by probating Tom Jr.’s will and, after some time, we were able to settle the estates of both Tom Sr. and Tom Jr. While it was no fault of Sam, this is a great example of the importance of having an Estate Plan in place. No one wants to leave their families in precarious situations after they pass. The long-term purpose of setting up an Estate Plan today is to preserve as much of your wealth as possible for the intended beneficiaries and retaining a capable attorney can help ensure all of your wishes are met.

At Scott Bloom Law, we are a team of advocates who care, always fighting for what’s best for our clients and their families. With knowledge, experience, and compassion, we strive to find solutions that make the aging process as emotionally and financially easy as possible. Visit us at scottbloomlaw.com or call 215-364-1111, to talk to find out more.

- Case Study: Estate Administration

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