If a will is admitted to probate, or if a will is rejected for admission to probate, any interested person may file a petition contesting the admission or the rejection of the will with the court that has jurisdiction. Such a petition begins a legal proceeding known as a will contest.
The petition must be filed within four months of the admission or rejection of the will. The Personal Representative must be served with notice of the filing within 90 days. The contest is considered commenced upon the filing of the petition.1 This means that service can occur outside of the four-month period, as long as it occurs within 90 days of the filing.
If notice is not served, then the court will not consider the petition. In addition, all named beneficiaries (or their guardians if under 18, or the personal representative of their estate if applicable) must be served notice. 2
An interested person is one who has a direct pecuniary interest in the probate of the will — he or she must stand to lose directly in a financial way. The interest needs to be in existence to be direct. An interest that may be subsequently acquired is not a direct interest for the purposes of contesting a will. (For example, if in your will you leave everything to your spouse, your son could not contest your will under the theory that he will have an interest if your spouse happens to pass away before the conclusion of probate.) Though, the interest does not need to exist at the time of death of the testator, rather just at some point during the four-month window for filing.
The term “will contest” is commonly used in reference to any challenge related to a will. It is important to understand that only certain matters are “will contests” that invoke the statutory requirements of the four-month limitation for filing and the required notices. Those issues include:
- issues regarding whether or not the testator had the capacity to execute the will;
- issues regarding whether or not the testator executed the will under duress or because of fraud or undue influence; and
- any other cause affecting the validity of the will or a part of it.
Submitting a later will (asserting that a subsequently executed will is the correct will), and claims regarding non-validity issues such as ademption and lapse are not “will contests.”
Keep in mind that will contests are usually very expensive — typically tens of thousands of dollars, at a minimum. Also, the court has the discretion to award attorney’s fees and costs. Sometimes this has the effect of increasing the length and expense of litigation because both sides believe that they will prevail and that the other side will have to pay the costs and fees.
If you would like to prevent a will contest with regard to your will, consider adding a no-contest clause.
See also deadman’s statute.