Will Contests —
Challenging and Defending Will Validity
I am John Meyers, a probate attorney in Lexington, KY with over 25 years’ experience in probate law practice including Will Contests, will interpretation proceedings, trust modification proceedings, and related matters.
What is a Will Contest?
A Will Contest is a legal proceeding to challenge the validity of a Will. If you think a Will that affects you may be invalid, talk to me about it. I can explain for you the “legalities” of a Will Contest, help you evaluate your situation, and represent you as needed. Similarly, let me know if you need to defend a Will against a claim. I can be reached at 859-552-5151 in Lexington, KY. Also, there is an email contact form at the bottom of this page.
Common Will Contest Factors
Simply claiming that a Will does not express the deceased person’s intentions, as you may know them, is not enough. A Will Contest must be based on a legal theory that supports invalidating the Will. Factors that can be the basis of a Will Contest and for invaliding a Will include:
• Undue Influence, Duress, or Coercion
Undue influence means that someone has exerted power over the testator (the person signing the Will) to the point that the testator did not act on his or her own free will, but instead signed a Will that the testator otherwise would not have signed. Undue influence sometimes occurs in instances where an individual has taken on an important role regarding the testator, and particularly where the testator has come rely on this person and may even feel some vulnerability to that person. Testators with diminished capacity, possibly due to age or illness, may be particularly susceptible to undue influence.
• Lack of Testamentary Capacity
To validly execute a Will in Kentucky, a testator must:
- know the natural objects of his or her bounty (generally the next of kin),
- know his or her obligations to them,
- know the character and value of his or her estate, and
- be able to dispose of the estate according to his or her intentions (in other words, make a deliberate gifting plan).
While this is a fairly low threshold of capacity, we do find instances where this capacity is not met. Often, Will Contest cases involving questions about testamentary capacity also involve undue influence or other factors.
• Forgery
Forgery in the context of a Will Contest case usually involves a false signature made by someone other than the party who appears to have signed the Will. The forged signature could be that of the testator or possibly of a witness to the testator’s signature.
• Fraud
Fraud generally involves someone making a false representation to the testator that causes the testator to execute a Will that he or she otherwise would not have executed. The false representation (or lie) might relate to circumstances that influences the testator’s gifting desires, such as that a family member has acted badly to the testator or is no longer alive. Or the lie might relate to the Will itself, such as having the testator sign a Will without knowing what it is or what it says.
• Improper Will Execution
Although the District Court judge will have reviewed the probated Will to ensure it “appears” to have been properly executed, in some Will Contest cases a deeper review of the facts may show that the Will was not properly executed. Problems could relate to the witnessing of signatures, whether a holographic Will is in the testator’s handwriting, and other technical requirements.
• Superseded Will, or Other Revocation
In some Will Contest cases there may be evidence that the testator revoked the probated Will prior to death. This would be most clearly shown by the existence of a later-executed Will. But a revocation can occur by other means. Sometimes a copy of a Will might be presented for probate when the original Will cannot be found. In those cases evidence might show that the testator likely destroyed the original Will with the intention of revoking it.
• Ambiguity or Mistake
Ambiguous terms in a Will, or mistakes in the preparation of a Will, can make the Will invalid if the problem is of such a magnitude as to affect the entire Will and make it impossible for the court to determine the testator’s intent. Alternatively, ambiguity of Will terms can be the basis of a Will interpretation proceeding rather than a Will Contest. A Will interpretation case does not seek to invalidate a Will, but only to have the court determine what the ambiguous terms mean. Such a case often will relate to only a particular gifting provision in the Will and not to the entire Will.
Will Contest – After a Will is Probated
A Will Contest occurs after a Will has been probated in the District Court of the county in which the deceased resided. Probating the Will means presenting the Will to the court for acceptance. Typically, the initial probate proceeding is brought by the person who is appointed in the Will as Executor to administer the estate. Often, that person also has a personal interest in defending the probated Will.
The court’s review of the presented Will at the probate hearing is limited to whether the Will appears to have been executed in accordance with law.
In Kentucky, a non-handwritten Will (the most common variety, and usually typed) must be acknowledged by the testator (which generally that means signed, but not always) and must also signed by two witnesses to the testator’s signing.
A handwritten Will (sometimes called a holographic Will) may also be probated in Kentucky in appropriate circumstances.
However, the court’s review of a Will at the probate hearing does not include a deeper examination of whether any of the factors discussed above exist that may cause the Will to be invalid. Therefore, the fact that a Will has been accepted by the District Court at the initial probate hearing does not indicate whether a Will Contest is appropriate.
When Can a Will Contest be Brought?
A Will Contest proceeding in Kentucky must be initiated (a Petition filed with the court) within two years after the Will has been probated. Other states have their own statutory time periods for filing Will Contest cases.
But keep in mind that many things can develop in the estate administration during this two-year time period that could complicate the Will Contest proceeding. This includes the possible sale of certain assets and the distribution of assets to the beneficiaries named in the contested Will. In fact, many estate administrations are fully completed and closed within two years after the Will is probated.
Those actions could make it difficult or even impossible to recover some assets if the Will Contest is successful. Therefore, it is usually best to initiate a Will Contest proceeding reasonably soon after a Will has been probated.
Who Can Bring a Will Contest?
An interested party, meaning someone who can show financial harm created by the probated Will, can contest the Will. In other words, Will Contests are brought by people who expect to receive more from the Estate if the probated Will is invalidated.
How Does One Bring a Will Contest?
In Kentucky, a Will Contest is brought before the Circuit Court of the county in which the Will was probated in the District Court. The case is initiated by the filing of a Petition with the court stating the grounds, or bases, for the claim that the Will is invalid. That Petition filing starts the litigation process. Typically, the party who probated the Will will then argue in defense of the Will.
What Can Be the Result of a Successful Will Contest?
The goal of a Will Contest is for the court to determine the probated Will to be invalid. When and if that occurs, the estate property will pass instead to either (i) the heirs under the state’s intestacy statutes (which direct who inherits when there is no Will) or (ii) possibly by the terms of a previous Will (because the invalidated probated Will never revoked or changed the previous Will).
While the goal of a Will Contest is for the court to determine the probated Will to be invalid, as with most types of litigation, many Will Contests are settled by the parties before a trial occurs and before the court makes a determination.
Of course, no Will Contest is guaranteed to be successful.
How Much Does a Will Contest Cost?
Will Contests are usually significant projects and, therefore, are expensive. Generally, there needs to be a significant amount of property at stake to justify the cost of a Will Contest. But each situation is unique, which is why a review of the facts and an evaluation of each case is essential.