Posted May, 2008 Kurt R. Nilson, Esq.          |            CLICK HERE FOR MORE ARTICLES

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 revoked. 

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.

Intestate Heirs

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.

Example Scenario

In 1966, 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 neighbor, Gladys.

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 either will.

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 standing.