Contesting a Will During Probate

Contesting a will — legally challenging its validity — is serious, expensive, and emotionally draining. Most contested wills are not successfully overturned. But sometimes there are genuine grounds to challenge a will, and understanding the process can help families decide whether pursuing a challenge is worthwhile.

Will contest procedures vary significantly by state. This guide covers general US principles. Consult a probate or estate litigation attorney for state-specific guidance and evaluation of your specific situation.

Who Can Contest a Will?

Not everyone can contest a will. To have "standing" to file a challenge, you must be someone who has a financial interest in the outcome — specifically:

• An heir who would inherit under the will
• An heir who would inherit under a prior will
• An heir who would inherit if the will were declared invalid (under intestate succession)

This typically means surviving spouses, children, and sometimes grandchildren or siblings. Friends, charities, and others who merely expected to inherit generally cannot contest a will.

When Can You Contest?

There is a deadline for will contests. Most states require you to file a challenge within a specific window — commonly 30–120 days after the will is admitted to probate. Missing this deadline is fatal to the challenge. If you believe you have grounds to contest, consult an attorney immediately after the will is filed with the court.

Grounds for Contesting a Will

You cannot contest a will simply because you disagree with its provisions or feel it's unfair. There must be a legal ground:

1. Lack of testamentary capacity

The person who made the will (the "testator") must have been mentally competent at the time they signed it. Specifically, they must have understood:

• That they were making a will
• The nature and extent of their property
• Who their "natural heirs" are (family members they would normally be expected to consider)
• How the will disposes of their property

Dementia, Alzheimer's disease, or other cognitive impairment may support a lack of capacity argument — but the standard is specifically the mental state at the time of signing, not general cognitive decline. This is the most commonly raised ground.

2. Undue influence

Undue influence occurs when someone in a position of trust exploited their influence over the testator to control the will's provisions. Classic situations: a caregiver who isolates an elderly person from family and becomes the sole beneficiary; a child who is constantly present and pressure-campaigns the parent to cut out siblings.

Proving undue influence requires evidence of both the relationship and the influence — it's not enough that someone had opportunity; you need to show they used it to override the testator's independent judgment.

3. Fraud or forgery

A will that was forged (not actually signed by the deceased) or that was based on fraudulent misrepresentation to the testator is invalid. Forgery cases typically require handwriting analysis and other forensic evidence. Fraud cases require showing the testator was deceived about a material fact.

4. Improper execution

A will must comply with the state's formal requirements for signing and witnessing. Most states require: the testator's signature, two witnesses (who were present and also signed), and some states require notarization. If the will wasn't properly executed, it may be invalid — even if the testator's intent was clear.

5. Existence of a later valid will

If you believe the will filed for probate is not the deceased's most recent will, and that a later valid will exists, you can challenge the earlier will and present the later one for probate.

The Cost and Difficulty of Will Contests

Will contests are expensive, time-consuming, and uncertain. Expect:

• Attorney fees potentially in the tens of thousands of dollars, with no guarantee of success
• The process to take 1–3+ years
• Emotional strain and family conflict
• Most will contests are settled — not won or lost at trial

Before pursuing a challenge, most estate litigation attorneys recommend an honest cost-benefit analysis: what is the potential recovery if successful, versus the cost and probability of success? If the challenged provision involves $50,000 and you have weak grounds, the math often doesn't work.

Mediation as an Alternative

Before filing a formal challenge, consider mediation — a negotiated settlement among heirs. This is faster, less expensive, and preserves family relationships better than litigation. Many estate disputes, including will contests, settle in mediation.

For the complete will guide, see our guide to understanding a will after a death. For the probate process generally, see our complete probate guide.