Are you excluded from a will but believe you have the right to inherit? You might be pondering, ‘can someone not named in a will contest it?’ The answer hinges on several factors such as your familial relationship, state inheritance laws, and the specifics of the will. Throughout this article, we’ll unpack the circumstances under which individuals not named in a will can challenge its terms, the concept of legal standing, and the strategies to navigate this complex legal terrain.
Key Takeaways
- Legal standing to contest a will is typically limited to direct family members or next of kin as recognized by intestacy laws.
- Grounds for contesting a will include improper execution, mental incapacity, undue influence, fraud, or forgery, and must be supported by evidence.
- The process to contest a will includes confirming legal standing, filing a petition in probate court, engaging a skilled attorney, and weighing the costs against potential benefits.
Who Can Contest a Will?
People who are considered “interested persons” may challenge or contest a will. Generally, there are three main categories of people who can challenge a will:
- Beneficiaries of a prior will;
- Beneficiaries of a subsequent will;
- Intestate heirs.
What is "Standing" to Contest a Will?
These three groups of people are those who have what is called “standing” to contest the will. If a person who does not have standing attempts to contest a will, the case will be dismissed at the outset. Only people with standing can contest a will because only people with standing will be impacted by the outcome of a will contest. Lawmakers do not want unnecessary legislation clogging the court system.
What is the Definition of a Beneficiary in Probate?
Beneficiaries are people who are specifically named in a will. Beneficiaries can be spouses, children, sibling or other relatives, but can also be non-relatives; friends, charitable organizations and even pets (who obviously wouldn’t be able to contest a will).
What is the Definition of an Heir?
Heirs are individuals who have the right to inherit the deceased individual’s property according to state statute in the absence of a will. The state statutes that set forth who a deceased individuals heirs will be are known as “intestate laws.” To learn more about how Illinois intestate laws work, check out our article, How is an Estate Divided Without a Will?
Heirs may also be named as beneficiaries in a decedent’s will. If a person dies without creating a will, however, heirs have standing because of their right to inherit based on intestate laws. If there was a will, an heir still can challenge the will if he or she was omitted from the will or believes they were left with a disproportionate share in the will.
How to Contest a Will
A will may be contested on the following grounds:
- That the will was not properly executed according to state law;
- That the decedent lacked the mental capacity to create the will at the time it was executed; or
- That the will was executed under duress or undue influence;
- That the will was executed as a result of a fraud;
- That the will itself is a forgery; or
- That the will had been revoked by its creator prior to death.
A will may be contested either by filing a petition to contest the validity of the will with the probate court or by filing a petition for a formal proof of will hearing, or both.
A formal proof of will hearing requires the executor to submit proof that the will was properly executed before two witnesses. A will contest can challenge the will on the grounds of improper execution or any other grounds. To learn more about the will contest process, check out our article, Illinois Will Contests Explained.
Improper Execution
Contesting a will on the basis of improper execution is widespread, which occurs if the will fails to adhere to specific state mandates about signing procedures, witnessing practices, and in certain cases notarial acts. For such a contest to be considered by courts, there must be evidence presented that confirms the faulty execution.
The presence of witnesses during the time when the will was signed can support assertions regarding the testator’s mental capacity at that moment. This can help solidify its legitimacy against challenges. To reduce chances of contention over a will’s authenticity, it is advisable for individuals to engage with professionals who are adept at drafting legal documents so as to ensure all formalities including proper witnessing and signatures are meticulously followed.
Mental Capacity and Testamentary Capacity
When challenging the validity of a will, it’s essential to assess whether the individual who created the will (the testator) had both testamentary and mental capacity. A person lacking in testamentary capacity is not considered to have the necessary soundness of mind or sufficient understanding needed to compose their estate plan. To affirm that an individual possesses such capability at the time they draft their will, protective steps like securing a doctor’s verification might be advisable if there are potential concerns about subsequent disputes.
Undue Influence and Duress
Frequently cited grounds for challenging a will involve instances of undue influence or coercion. Undue influence occurs when someone exerts significant pressure on the person creating or modifying their will, known as the testator, to shape its contents in a certain manner. For instance, it is not uncommon to see cases where a caregiver takes advantage of an elderly individual’s vulnerability and convinces them to change their will in favor of the caregiver.
Should a party be able to show that undue influence played a role in how the will was drafted, there may be sufficient basis for that party to contest and potentially overturn the provisions of the disputed will successfully.
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