by Raymond Bilodeau

Created on: December 02, 2008   Last Updated: December 10, 2008

Contesting a will is not complicated, but also not easy to prove. First, you must get and read the will. If the will has not been offered for probate, you cannot contest it. Once part of a probate court record, it is a public record, unless it has been impounded by the judge for some reason. Impoundment is rare. Many wills are contested by children or other family members, without paying attention to a provision in the will that disinherits anyone who contests the will. Any contest of a will with such a provision may simply accomplish the opposite of what was intended.

First, you have to prove whatever grounds you are offering to contest the will, and the grounds have to be substantial and relevant. "He promised me..." will not do, unless you provided goods or services in anticipation of being included in the will. No writing? No witness? Heirs able to show the deceased never said anything to them about such a promise? Heirs never heard from you about such a promise until the testator died and the will was admitted for probate? Not likely you will succeed.

The opposite, the "undue influence" contest, pits the heirs against the caretaker who has been given most if not all of the estete, You will need to prove that the caretaker made it difficult to visit or communicate with your decedent. You tried, over and over. You have witnesses, records, returned letters, telephone records. Medical records showing you were or tried to be involved in his care and treatment will also help. If your only concern for the deceased was hoping he would die so you could get his estate and you had no personal contacts or attempts at personal contact, you may get a settlement offer, or you may lose.

Second, you must be an heir at law, an omitted heir, or have some other standing to contest the will. An heir at law is a spouse, child or parent or sibling, or a descendant of one of them. Some omitted heirs, such as children born or adopted after the will was signed, are usually automatically added to the list of persons to share in the estate, unless the testator has specifically stated that person is not to take under the will.

Third, you need to read and follow the rules of the court for contesting a will. Some states require specific language or forms for will contests. Some require certain documents to accompany the contesting document. There may be some cases bringing in other requirements. That means you need to find a local or county or law school library and find the books lawyers use for probate work. It will cite and discuss these cases, have the forms, and list the requirements.

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