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Who Can Challenge a Will?

Not everyone can challenge a will. For instance, you cannot challenge your cousin's will just because you believe his estate would be better off in the hands of another relative. In addition, you cannot contest a will just because you do not believe you received a fair share.

According to basic probate laws, only “interested persons" may challenge a will – and even still only for valid legal reasons. The Probate Code identifies “interested persons” to include children, heirs, devisees, spouses, creditors, or any others having a property right, or claim against, the estate being administered.  Therefore, those who may challenge a will generally fall into one of three main categories: (1) beneficiaries of a prior will, (2) beneficiaries of a subsequent will, and (3) intestate heirs.

Standing

While state laws vary from state to state, all states have laws that must be met before a will contest may take place. The first requirement is “standing”. A person who has “standing” to challenge a will is typically someone who is named on the face of the will (such as the beneficiary) or someone who is not the beneficiary, but who would inherit (or lose) under the will if the will was deemed invalid. Standing is the first requirement to overcome to contest a will. You must either show that you were named on the will (or should have been), or show that you would have received something of value (typically money) if the person had died without a will.

Beneficiaries

Beneficiaries have standing to challenge a will, whether or not they are relatives of the deceased. Beneficiaries are those who are named in a will and can include your spouse, children, grandchildren, or other relatives, but can also include friends, charitable organization (like churches, synagogues, and universities), charities, and even pets.

Heirs

Heirs have standing to challenge a will because if a testator dies without having a will, heirs would receive a share of the estate through the laws of intestate. Heirs are the most commonly named beneficiaries to a will. Heirs are relatives who inherit under a will when a decedent dies “intestate”, or without a will. This typically includes spouses, children, parents, grandparents, and siblings.  Heirs can challenge a will if they believe there were omitted or left with a disproportionate share in the will.

Minors

Under some laws, minors who would like to challenge a will may do so, but only after they reach the age of majority (typically age 18). This is because minors are not legally able to initiate legal proceedings, except under the guidelines of an executor or court representative.

‘No Contest’ Clauses

Wills sometimes have what is known as a “no contest” clause as a condition of the will. A “no contest” clause has the effect of disinheriting someone out of a will. If a beneficiary losses a challenge under the will, the beneficiary may be left out from inheriting under the will, thus disinheriting the will. Because a “no contest” clause often forces a contesting beneficiary to make a “take it or leave it” decision or risks losing everything, “no contest” clauses are generally not enforceable and, in most states, anyone with standing can challenge a will if they have valid reasons to challenge it.

 

 

Next Steps
Contact a qualified estate planning attorney to help you ensure
that your loved ones are cared for and your wishes are honored.
(e.g., Chicago, IL or 60611)

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