Evidence Needed to Contest a Will: Definition, Legal Grounds and Process Overview

Generally, in contesting a will, the burden of proof lies on the person contesting to prove their case by showing that it is more likely than not that their version of events is true and can be relied on. To prove their case, they can present documentary evidence, expert testimony, witnesses, and video and audio evidence.

The evidence should be filed together with the petition contesting the will within the timelines provided by the court. The legal grounds for contesting a will are lack of testamentary capacity, mistake, fraud, forgery, undue influence, and improper execution. 

Before contesting a will, you should consult experts in estate planning such as LegalPen. 

What Is Contesting a Will?

Contesting a will is the act of petitioning the court to determine whether the whole or part of the will is legally valid and enforceable. It is usually done during the probate process, and the person contesting the will has the legal and evidential burden of showing that the will is invalid and thus unenforceable. 

Contesting a will is done at the probate court handling the petitioning of the will. You can contest a will yourself or with the help of an estate planning attorney. We recommend that you seek counsel before proceeding to contest a will. 

When Can You Contest a Will?

You can contest a will if you have the legal standing to contest a will, the evidence supporting a ground for contesting a will, and the resources such as money and time. You should contest a will when there is a likelihood to succeed; always consult your attorney to find out your likelihood to succeed; because, generally, for a will contest, the success rate is 2%. After establishing that the potential benefit of contesting a will is more than the potential risk, only then can you proceed and contest the will. 

How to Contest a Will and Win

You contest a will by filing the documents required by the court and probate forms that can be found on the probate court website within the required timelines. You win in the probate court by adequately preparing for your case and gathering substantial evidence to support the ground for contesting the will that you are alleging.

The evidence to support your claim should be so overwhelming that it tilts the scales in your favor. And, of course, find a reasonable and competent estate planning attorney who will represent you zealously. 

What Happens After a Successful Contesting?

After a successful contest, part of the will or the whole will is declared invalid. Once a will is declared invalid, the property is devolved according to a previous will. In instances when the deceased had not written another will, the property is devolved according to the laws of intestacy of the state where the decedent was residing at the time of their death.

What Factors May Be Raised to Contest a Will?

To contest a will, the factors that may be raised include:

1. Standing: the testator must have a legitimate claim, and they should be interested in the outcome of the contest. They should be a beneficiary under the will or an heir as considered by intestacy laws. 
2. The grounds for contesting a will: One must have legitimate grounds for contesting a will.
3. Time limitations: The contest of the will must be done within the required timelines as stipulated by the law, and contests done out of time may be struck out by the court.
4. Evidence: the person contesting the will must have evidence to support the will contest.

What Does It Mean to Have “Grounds to Contest a Will”?

The grounds for contesting a will are lack of testamentary capacity, forgery, fraud, undue influence, improper execution, mistake, and unclear will provisions. To have grounds to contest a will means to have a basis for which you are challenging a will and evidence to support your basis. For example, for improper execution you have evidence that the decedent did not sign the will as required by the law. 

What Are the Most Common Grounds for Contesting a Will?

Grounds for contesting a will vary from one state to another depending on their laws and the established judicial precedent in their courts. The most common grounds for contesting a will are:

1. Lack of testamentary capacity

Under this ground, the argument advanced is that the testator was not of sound mind when creating, executing, or updating a will, and as such, they did not comprehend how their estate would be divided among their beneficiaries.

2. Undue Influence

Under this ground, one is supposed to show that the testator was pressured, coerced, and unlawfully influenced to write, create, or sign a will. The pressure should be such that the testator had no option but purge. 

3. Failure to adhere to statutory requirements

Under this ground, you advance the argument that the testator did not sign the will, two witnesses did not observe the will being signed by the testator, the witnesses were not competent and credible, and the witnesses did not sign the will in the presence of the testator.

4. Fraud

Under fraud, it can be fraud in the factum or fraud in the inducement. Fraud in inducement occurs when the testator signs or updates a will due to false information given to them, and fraud in the factum arises when the testator signs a will via deception on the misrepresentation that they are signing a card or a contract. 

5. Forgery

Forgery can be inferred when there are inconsistencies between what the decedent told their beneficiaries and what is in the will, and oddities in the testator’s signature on the will, like a full name signature when the testator would only sign their initials.

6. Revocation

Under this ground, you show that the decedent revoked their will without the intention of canceling it before their death. 

Who is Most Likely to Contest a Will?

It is worthy of contest a will because it ensures that the decedent’s wishes are respected and there is fairness. The decedent’s beneficiaries included in the will are most likely to contest the will, and other persons are likely to have been beneficiaries in case the decedent died intestate. The beneficiaries in intestate succession are persons in the line of consanguinity with the decedent, such as a spouse, children, parents, siblings, and grandparents. Only once you have an interest in the estate of the deceased, for example, a creditor, can you contest a will.  

Can Someone Contest a Will If They Are Not in It?

Yes, someone can contest a will if they are not in it. The persons who can contest a will if they are not in are persons who are related to the decedent and the persons who have an interest in the decedent’s estate. To contest a will, you should be named as a beneficiary in a previous will or be an heir who would inherit under the rules of intestacy if the will is deemed valid. When contesting a will, it should be done on legitimate grounds such as lack of mental capacity, undue influence, fraud, unclear will provisions, and failure to adhere to the execution and witnessing procedures.  

Can You Prevent Your Will from Being Contested?

Yes, you can prevent a will from being contested. You can do so by: 

1. Ensure the will is written by the law and properly executed and witnessed.
2. Discuss your wishes with your loved ones and beneficiaries to prevent surprises after your passing on.
3. You can include a no-contest clause in your will. This clause serves a deterrent purpose by preventing beneficiaries from challenging a will. 

When Would a Will Contest Action Most Likely Be Filed?

You must file a will contest within the timelines specified by the estate laws and the statute of limitations. For example, in some states, like Texas, a will contest should be filed within two years of the will being admitted to probate. Some states, like California, recommend that you file the contest within 90 days after the petition for probate has been filed.The time limit is set by the court, and if you file out of time, your claim challenging the will is likely to be thrown out. 

Before filing a will contest, you must ask yourself what the chances of contesting a will and winning are once your answer is affirmative; only then can you proceed and file a will contest. 

What Is “Standing” in Will Contests?

Standing is the legal ability of a party to initiate a claim or suit. The person must demonstrate that they have a sufficient connection to the issue at hand. In a will contest, standing means that the person is interested in the outcome of the will contest. For example, the beneficiaries named in the will, heirs at law who would have inherited if the deceased had not made a will, and creditors.

Standing is an essential component in contesting a will; without standing, you cannot contest a will. 

How a Will Contest Lawyer Can Help You

A will contest lawyer is a crucial person in challenging the will. They provide guidance on:

1. Whether you have a viable claim.
2. Whether the grounds for contesting a will are recognized under law.
3. The likelihood of success if you file a will contest.
4. Whether the evidence is sufficient to support a successful contest claim.
5. Whether you have standing to contest a will.
6. They help you file the contested claim in the courts with jurisdiction.
7. They help you defend your claim.
8. They help pursue the benefits of the suit.

Always consult a lawyer before contesting a will, and you can contact LegalPen to help challenge a will. Their guidance and counsel are essential. On average, the cost of contesting a will is $5,000 to $10,000. 

Evidence Needed to Contest a Will in Texas

There are five recognized grounds for challenging a will in Texas. Each ground requires a threshold of the evidence required to successfully challenge a will. The evidence required is as follows:

1. For lack of testamentary capacity, medical records, witness statements, video footage of the decedent, and the statements or testimonies of the treating physicians must be provided to show that the testator was not of sound mind and did not comprehend how their estate would be divided among their beneficiaries.
2. For undue influence, one will have to show evidence, through videos or documents, that unlawful pressure or coercion was involved that interfered with the decedent’s free will at the time of making the will.
3. For failure to adhere to statutory requirements, the person contesting can show that the testator did not sign the will, or the signing of the will was not witnessed by two competent witnesses, and the witnesses did not sign the will in the testator’s presence.
4. For fraud, they must show that the testator relied on false information and material misrepresentations to make a will, such as someone fabricating financial need, debts, or charities for inheritance purposes.
5. For forgery, one can present evidence of inconsistencies between what a decedent told them and what is in the will and the oddities in the testator’s signature on the will, like a full name signature when the testator would only sign their initials.

Evidence Needed to Contest a Will in California

To successfully contest a will in California, the person must thoroughly prepare for the case by gathering substantial evidence. The evidence needed is:

1. Witness testimonies: from persons who can attest that the decedent lacked testamentary capacity when making the will and those who observed fraudulent acts.
2. Expert testimony: expert testimony from the doctor to prove that the decedent was mentally incapacitated when s/he was making the will. 
3. Documentary evidence: documentary evidence to show that the will was not signed and witnessed correctly, documentary evidence to show forgery and even fraud.
4. Electronic communications: video and audio evidence to show fraudulent behavior