Who Can Challenge A Will?

Not everyone can contest a Will. If Person A owes you money, and then Person A passes away without repaying that debt, you may not be able to get any money from the estate. Unless you meet one of the criteria listed below, you will likely remain unpaid if you are not named in the Will.

The vast majority of Wills go through the probate process without a challenge. It is exceedingly difficult to challenge a Will. That said, there are still some situations in which a person may be qualified to challenge it.

Only “interested persons” can challenge a Will

The Probate Code lists certain categories of people as “interested persons” as it relates to someone who has died. As it relates to the decedent, an “interested person” must be either a child, an heir, a spouse, a creditor (so you may have a claim if the decedent owes you money), or a devisee. A devisee is a person to whom real estate is bequeathed in a Will.

The challenge of a must be for valid legal reasons

Some of the legal reasons under which a Will can be challenged are related to influence. If fraud or forgery occurred, or if someone influenced the decedent to change the Will, these are valid reasons. If the signing of the Will was not witnessed by at least two adult witnesses, it could be cause for a challenge. Some states do not allow “holographic” Wills, meaning Wills that are handwritten and unwitnessed. If there are multiple Wills, and another Will is believed to take precedence, then this is a valid reason.

 The Will challenger must have “standing”

If a person is a beneficiary or an heir, this person has standing. If a person stands to lose if the Will is deemed invalid, then the person has standing. If a person would have inherited property or money if the decedent had died without a Will — that is, if a person stands to lose if the will is enforced — then the person has standing.

If the person challenging a Will is under 18, it poses a problem

Minors are not allowed to initiate legal proceedings. Therefore, if the person wishing to challenge the Will is a minor, they may not be able to do so until they turn 18 — this is called “reaching the age of majority.”

There may be a “no contest” clause

If a Will has a “no contest” clause, then a person challenging it risks being left out from the Will if they lose the challenge. This is called “disinheriting” a Will. The person challenging can risk losing everything. Often, however, these clauses cannot be enforced. If a person has valid legal reasons to challenge the Will, then they may do so.

Spouses most often challenge successfully

As we stated earlier, most challenges to Wills do not stand up in court. The courts view the Will as the voice and intent of the testator — the person who wrote the Will and then died. Since the Will is that voice, the courts most often hold onto the Will’s language as the desire of the testator, and therefore unable to be questioned.

Generally, the person challenging a Will is most often the decedent’s spouse, typically because they claim someone persuaded or influenced the decedent to write or edit a Will. It may also be the case that the spouse (the widow or widower) can prove that the decedent lacked testamentary capacity.