Many people are
interested in knowing how a will can be contested and,
more particularly, what they can do to prevent anyone
from contesting their own will.
Before discussing any of the
issues that may allow a will contest, successful or
otherwise, it is important to understand who has the
legal right to contest a will in the first place.
Just as with other legal
proceedings, any one who wishes to pursue a will contest
must have sufficient legal capacity, or "standing", in
order to use the court system. Although it may
involve more complex issues, the legal concept of
standing generally requires anyone who seeks the court's
assistance through a lawsuit to be 1) sufficiently
connected to a subject of the lawsuit 2) that caused the
person to suffer an injury 3) which can be remedied by
the legal action being pursued.
At its most basic, standing to
contest a will may be thought of as belonging to any
person (or entity) who will gain more property if the
current will is invalidated than he or she will gain if
the current will is followed. The most common
scenarios will involve: 1) those who are named by an
alternate will that grants them a greater share of the
estate than the current will, and 2) those who are the
testator's intestate heirs where invalidation of the
current will is certain to cause intestacy.
Beneficiary of a Prior Will
A person can't make conflicting
instructions about the same topic by different wills.
When there are multiple wills, the will with the latest
date controls every subject that is shared among those
wills. It is assumed that the instructions in the
most recent will are the instructions that the person
really wanted to have followed after his or her death.
For example, John has a 2001
will that gives "my only share of Exxon Mobil to my good
friend Ida" and a 2003 will that gives "my only share of
Exxon Mobil to my good friend Ivy." If he dies
without destroying or otherwise revoking the 2003 will,
Ivy is the sole beneficiary of that gift.
In order to reduce confusion
about which will controls, it is fairly standard
practice for all wills to contain instructions that
specifically revoke every other will that person may
have made in the past, even if new will is the first
will that person has ever made. When that newest
will is otherwise valid at the time of death, these
instructions are also valid and all earlier wills are
However, according to the
principles of 'dependent relative revocation' when a new
will that was intended to revoke a prior will is deemed
invalid, the earlier will becomes "active" again,
provided that the new will was the only action taken to
revoke the prior will. (For instance, burning the
prior will is an additional action of revocation that
effectively revokes a will whether or not there is a new
will to replace it.)
In other words, if every
instruction of the current will is declared void, the
clause that was intended to revoke all prior wills was
never effective and the previous, most recently dated
will was never revoked. When the most recent will
can be produced, any beneficiary of that most recent
will can use this principle as the basis for standing to
contest the current will. If that beneficiary can
prove that the current will is void, then the most
recent will must be followed and that person becomes a
beneficiary of the estate.
Beneficiary of a Subsequent Will
Following the most recently
dated will also allows someone who is named by a will
dated later than the current will to seek probate of the
will with the later date. These circumstances are
not quite the same as the contest of a will, as the
proponents of the new will are not attempting to
disprove the legal sufficiency of the current will that
is being offered for probate. However, it is
mentioned for consistency, as these circumstances may
lead to legal proceedings.
When there isn't a prior will to
be followed in its absence, any person who is entitled
to receive a portion of the intestate estate can contest
the current will. Unlike dependent relative
revocation, people contesting a will in these
circumstances are seeking to have all or some portion of
the estate pass according to the laws of intestacy.
As wills most often dispose of everything a person owns,
these people are normally interested having the entire
will declared invalid so that the entire estate passes
by intestacy. However, an intestate heir can also
seek to cause a partial intestacy by having specific
portions of the current will declared invalid.
Samantha and her husband, Darrin, have their first
child, Tabitha. Following Tabitha's birth,
Samantha and Darrin make reciprocal wills naming each as
the sole primary beneficiary of the other's property,
followed by Tabitha as the sole alternate beneficiary if
neither of them are living.
About three years later Samantha
becomes ill and her favorite uncle Arthur moves in with
the family to assist her. During this time Arthur
decides he doesn't like Darrin and begins trying to
convince Samantha that something about Darrin has
suddenly changed and he does not appear to be the same
man that she first married.
As time goes by, Samantha's
illness becomes steadily worse and Arthur begins
discussing this issue with Samantha more frequently.
Although he never discusses this while Darrin is around,
Arthur does not have the same reservations about
discussing the issue in front of others and frequently
raises the subject in the presence of Samantha's
Eventually convinced that Darrin
is some sort of imposter, Samantha makes a new will that
completely excludes him. In fact, she is so
concerned with the thought of leaving her money within
the control of this conniving stranger that she also
excludes her daughter, believing that the 'new Darrin'
would simply take control of any assets left to Tabitha.
Her solution is to name Arthur as the primary
beneficiary under the new will, followed by Tabitha.
As she becomes unable to deal
with the stress of living with a stranger, Samantha's
health begins to deteriorate rapidly and she eventually
passes away. Darrin presents Samantha's reciprocal
will for probate and shortly afterward, Arthur presents
Samantha's newest will for probate.
Contesting Samantha's Will
The obvious candidate for standing to
contest Samantha's will is Darrin. Although
spouses are also afforded the right to claim a statutory
share of the deceased spouse's estate when they are not
included in a will (the specifics of which are beyond
the scope of this article) Darrin was the sole
beneficiary under an earlier will that granted him the
entire estate. As he is in a position to receive
more property by contesting the will than by claiming a
statutory share, Darrin would most likely pursue a will
contest and would have standing to do so.
Although she is also named by the
earlier will, Tabitha does not have legal standing to
contest the present will upon that same basis. In
addition to the requirement of injury, the person
contesting a will must also be in a position that will
be remedied by the action being requested through the
courts. Tabitha is the sole alternate beneficiary
of a single primary beneficiary under each will.
As each of these primary beneficiaries survived
Samantha's death, Tabitha is in the same position with
However, if no one could produce the earlier will,
Tabitha may have standing to contest the current will,
depending upon whether Darrin would be required to share
the intestate estate with her under the
appropriate intestate laws.
Now suppose that neither Tabitha
nor Darrin wish to contest this will, but that Gladys
would like to pursue a contest because she knows the
full circumstances behind the newest will and the
reasons for the changes. Gladys is not named by
the earlier will and is not a statutory heir, which
means that even if the current will is declared invalid
Gladys will not take a portion of Samantha's estate.
Even though Gladys may be able to absolutely prove that
the current will does not contain Samantha's true
wishes, she does not fall within the category of people
who have standing and cannot bring will contest.
Of course, legal standing to
contest a will does not assure any one of success.
In that same regard, anyone with legal standing is much
closer to success than any person who does not have