Contesting a Will — Answers to Your Questions

The death of a loved one is always difficult on many levels. But when those left behind have reason to believe that the person's will should be invalidated, it gets even harder. Few people have been through the probate process, and even fewer have experience with probate litigation. To help you navigate your legal issue, here are some answers to questions you may have about how will contests work.



What Is a Will Contest?

Objecting to the validity of a will is known as contesting it. Will contests are handled by the state's probate court. Probate court oversees matters regarding wills and estates, including determining which wills are valid. And if no valid will exists, the probate court directs the distribution of the estate based on its predetermined inheritance rules.

Who Can Contest?

In civil law, a party must have legal standing in order to bring a case before the court. For probate purposes, this generally means that the petitioner has a financial interest in the will. Obviously, then, those named as beneficiaries can contest it. In addition, creditors who may have a right to be paid from the estate before it's distributed to heirs have a legal interest.

However, even those left out of a will may have standing to contest it. Consider the will of an unmarried parent who leaves everything to one sibling but nothing to the other. If the will were deemed invalid, both siblings would likely inherit equally according to South Carolina intestate inheritance rules. So the sibling who was left out has a financial interest in determining if the will really is valid.

On What Grounds Can You Contest?

A person cannot contest a will just because they don't like what it contains. They must prove that there is a defect in the will which makes it legally invalid.

One of the most common defects is that the testator was not of sound mind when they signed the will. They may have been subject to undue influence, such as by a caregiver. Or the will might not contain the legal requirements to be valid in the state. And certainly, if you don't believe the will was actually written by them, you can challenge it.

What Can You Win?

So, if you successfully contest a will, what outcome can you expect? If the entire will is set aside, an earlier or later will may be deemed valid in its place. The new will's terms will be adhered to. If no other will exists, the state's intestate inheritance rules determine who inherits what. 

You may also succeed in having just a portion of a will set aside. Perhaps your parent's will has a recent codicil, or memorandum, attached. You successfully argue that they were not of sound mind at the time the codicil was written. It may be set aside while the rest of the will is confirmed. 

Can You Settle a Contest?

Few people enjoy going to court, especially after the loss of a loved one. The good news is that, as with most civil court cases, you can negotiate a compromise and settle out of court. The two siblings above might, for instance, agree to have the inheriting sibling give a portion to their disinherited sibling. While it may not be as much as the other wants, they save the cost and family conflict of a court battle. 

Where Should You Start?

Contesting a will can be an uphill battle. The best place to start is to meet with an experienced probate litigation attorney in your state. At Shepherd Law Firm LLC, we've assisted beneficiaries and family members with all their probate concerns for more than 15 years. Call to make an appointment and learn how we can help you.