How to Contest a Will After Probate

C1 Partners

Dec 22nd, 2020

Can a Will Be Challenged After Probate?

The death of a family member or another loved one is already a difficult event to process, but with questions about their assets and estate, it can be downright frustrating. This is especially true when the deceased person left a will and the beneficiaries aren’t satisfied with what was bequeathed to them. Some people are unhappy about the assets that are or aren’t left to them, leading them to the question: is it possible to contest a will after probate?

The short answer is yes. But before we dive into the process, let’s discuss some important terms.

What is a Will?

A last will and testament or simply a will is a legally-binding document stating a deceased person (testator)’s wishes upon their death. This includes instructions on how their estate is to be distributed and who the beneficiaries of the assets in the estate will be.

What is an Estate?

An estate is every asset that comprises a person’s net worth. This includes all real estate, land, bank account, vehicle, pieces of jewelry, and other properties an individual owned when they were alive. If a person creates a will before their death, their estate will be distributed to the person or persons they named in the will.

However, a beneficiary might not be happy with the assets they inherited from the testator either because they believe they didn’t get enough or don’t want what they inherited. Dependents and other close relatives who aren’t named in the will may also want to contest it because they think they are entitled to inherit.

What is Probate?

The will’s executor, which can be their lawyer or financial advisor, files the will with the probate court to initiate the probate process. Probate is the legal process of establishing the validity of a deceased person’s will. Here, the court will decide whether the will is authentic and accepted as a true last testament of the testator. Then, the executor will make sure the testator’s liabilities are paid and the remaining assets from their estate are distributed to the right people.

Contesting the Will After Probate

If the probate court finds the will authentic, its executor can start distributing the testator’s assets. But if a beneficiary doesn’t agree with the will, they can contest it even after probate. People who can contest the will are:

Beneficiaries already named in the will
Beneficiaries named in a previous will but were written out of its most recent version or whose inheritance was significantly decreased in the final will
People who weren’t named in the will but were the deceased person’s legal heir or close relation who would otherwise inherit if a will didn’t exist

Any person who can contest the will is free to do so, but will have to have a legal basis for the contention. Some of the valid reasons for contesting a will include:

The deceased wasn’t mentally competent when the will was made

The testator must be of sound mind when writing the will. This means they understand the consequences of writing it and naming their beneficiaries. This may be contested if the person challenging the will has proof of testamentary incapacity, such as sworn notices from medical practitioners and other witnesses.

The deceased was coerced into creating or changing the will

When the testator changes their will at the last minute or writes a clause that is detrimental to their estate, eligible people might suspect undue influence. This may be difficult to prove as the person contesting must show that there is no other reasonable explanation for how the will is written or the changes in it.

Laws were broken when the will was created

For a will to be valid, it must be signed by two witnesses upon writing. If the testator makes modifications, the new version of the will also needs two witnesses to sign it. If the witnesses or their signatures were fraudulent or if the signature of the testator is forged, eligible beneficiaries might have a reason to contest its validity.