Contesting a will, and whether it is worth it

Being unhappy with a will is not a ground for challenging it. The recognised grounds are specific, difficult to prove, and expensive to litigate.

Who can challenge

Standing is limited to those with a financial interest — generally beneficiaries under the current will, beneficiaries under a previous one, and those who would inherit under intestacy.

Which means a person left out entirely, who would have inherited otherwise, has standing; a friend who expected something does not.

The grounds

Lack of testamentary capacity. That the person did not understand the nature of making a will, the extent of their property, or who would ordinarily be expected to benefit.

The standard is generally lower than for other legal acts, and capacity is assessed at the moment of signing.

A diagnosis of dementia does not establish incapacity — people with cognitive impairment can have lucid intervals and can meet the standard.

Undue influence. That someone exerted pressure that overcame the person's own volition.

Courts examine whether there was a confidential relationship, whether the influencer participated in procuring the will, whether the person was isolated, and whether the outcome departs markedly from earlier intentions.

In some circumstances these factors shift the burden of proof, which makes this the more commonly successful ground.

Fraud, including deception about the contents of a document or about facts affecting the disposition.

Forgery.

Improper execution, where statutory formalities on signing and witnessing were not met.

Revocation, where a later will or an act of revocation superseded the document produced.

The practical difficulties

The best witness is dead. The person whose intentions are at issue cannot explain them.

Evidence is circumstantial. Medical records, witness testimony about the person's condition, the drafting attorney's file notes, and the circumstances of execution.

The presumption favours the will. A properly executed will is presumed valid, and the challenger bears the burden.

Professional drafting is protective. An attorney's contemporaneous notes assessing capacity and intention are strong evidence.

Which is one reason professionally drafted wills are challenged less successfully than homemade ones.

The economics

The calculation people frequently avoid making.

Litigation costs come from somewhere — the challenger's own funds, and frequently the estate's, which reduces what everyone receives.

Cases take years. Assets may be frozen or unmanaged during that time.

Most challenges fail, and even successful ones frequently produce less than a negotiated settlement would have.

And the family relationships involved generally do not survive it.

Which means the honest question is whether the expected recovery, discounted for the probability of success and the cost of pursuing it, exceeds what could be obtained by negotiation.

Frequently it does not, and the litigation is being pursued for reasons that are not financial.

No-contest clauses

A provision stating that a beneficiary who challenges forfeits their inheritance.

Enforceability varies considerably by state. Some enforce them strictly; others decline to enforce where the challenge was brought in good faith with probable cause; a few do not enforce them at all.

They are effective only where the challenger has something meaningful to lose, which is why a small legacy is sometimes left to a potential challenger specifically to give the clause teeth.

Someone left nothing has no disincentive at all.

The alternatives

Mediation, which is faster, cheaper and permits outcomes a court cannot order.

Where the underlying grievance is about recognition rather than money — which it frequently is — mediation can address something litigation cannot.

Negotiated settlement among beneficiaries, which most states permit and which can restructure a distribution by agreement without any court determination.

A claim against the drafting attorney, where a will failed to carry out clear instructions through professional error, which is a different action entirely.

Before starting

Worth obtaining an honest assessment from an attorney with litigation experience in this area, specifically on the probability of success and the likely cost.

An attorney who takes the case without giving a candid view of both is not serving you well.

And it is worth asking yourself what outcome would actually resolve the grievance, since in many of these cases money does not.

General information only, not legal advice. Grounds, procedures and enforceability vary substantially by state — consult a qualified attorney.