Will Contest

During probate and estate administration, disputes sometime develop that lead to estate litigation. If the dispute centers on the validity of the will, it is called a will contest. Because the will is the foundation of the administration process and estate distribution process, the probate court must stop and consider legitimate challenges to the validity of a will.

Who Can Contest It Will

When the contents of a will are revealed, some people might be surprised. Some family members may have expected more. Some may be surprised at what others received. The result may be that one or more people believe the will to be invalid. However, a will contest is not that simple. While there may be many who are surprised, angered, or upset by the terms of the will, feeling certain emotions does not give someone the legal right to contest a will. The objectant must have legal standing.

Generally, those with standing include beneficiaries of the challenged will, beneficiaries of a prior will (if any), and the decedent’s legal heirs. These are the people (or entities) whose financial position may be impacted based on the outcome of a will contest.

Procedure for Contesting a Will

There are two ways to object to a will. If the will has not been filed for probate, the objectant can file a “caveat” so that a formal hearing would be required before the will can be probated. Miss. Code. Ann. § 91-7-21

If the will has already been submitted for probate and the objectant was not notified, the objectant can file a suit to set it aside. The suit must be filed within 2 years after the will was probated.

Grounds for Contesting a Will

In addition to having standing for contesting the will, the objectant must also have legal grounds. It is not enough for the objectant to be upset over the terms of the will. The objectant must have a legally acceptable reason for objecting that is based on evidence. Valid legal grounds include:

  • The testator lacked legal capacity. Legal capacity refers to whether the testator had sufficient mind and memory at the time they executed the will to understand what was going on. The testator must have understood the impact of making a will as well as who their legal heirs were and the general size of their estate. Evidence that the testator lacked legal capacity would be grounds for invalidating the will.
  • The testator was under undue influence. A will that does not reflect the testator’s wishes is not valid. If someone exerts illegal pressure on the testator such that the testator was no longer capable of their own free will, the will would not be valid. Evidence of undue pressure includes a testator who is vulnerable due to age, illness, or isolation. Evidence also includes the presence of someone in the testator’s life who is in a position of trust as well as a will that was favorable to that person instead of those who would be expected to be included.
  • The will was not properly executed. For a will to be valid, it must meet specific technical requirements. The will must be in writing, must be signed by the testator (or at the direction of the testator in their presence), and must be signed by at least 2 competent witnesses. If there are irregularities in the execution, there may be grounds for invalidating the will.

Outcomes of a Will Contest

If the objectant is successful and the court agrees that the will should be invalidated, probate will not move forward based on that will. Instead, the decedent’s estate will be probated based on either a prior valid will or based on intestate succession.

Under intestate succession, the estate would be distributed to the decedent’s next of kin. The surviving spouse and children are first in line to inherit. If there is no surviving spouse or children, then the decedent’s siblings, parents, or other relatives would be entitled to inherit, based on the statutory order of priority.

Enforcement of Forfeiture Provisions

A forfeiture provision in a will discourages will contests by requiring an objectant who is also a beneficiary to forfeit all or part of their inheritance if they contest the will. In Mississippi, forfeiture provisions are enforceable unless the objection was brought in good faith and there was probable cause for the contest. Miss. Code. Ann. § 91-8-1014

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