Will Contest

The purpose of making a will is to leave a document that expresses the wishes of the testator. There are several safeguards that go into making a will to ensure that it does indeed reflect the wishes of the testator. The document must speak for itself since the testator will not be able to explain or clarify their intentions. After the testator has passed away and it is time to follow the instructions of the will, if someone comes forward with allegations that the will is not valid because it does not reflect the true wishes of the testator, then the court must determine whether to allow the will to be probated. This type of probate dispute is called a will contest.

Procedure for Contesting a Will

In order to contest a will in Montana, the objectant must have legal standing. This means that only those who will be impacted financially if the will is probated have the right to initiate a will contest. Beneficiaries, heirs, and beneficiaries of a prior will have standing. The objectant must file their objection in writing and must have legal grounds for their objection. Examples of valid legal grounds include:

Lack of testamentary capacity. Montana law requires that a testator have “testamentary capacity.” This means that the testator must have been at least 18 years old and must have been “of sound mind” at the time that they made the will. In other words, the testator must not have been suffering from a mental incapacity. Mont. Code Ann. § 72-2-521. Montana courts have described testamentary capacity as the testator being “aware of: (1) the nature of the act to be performed; (2) the nature and extent of the property to be disposed of; and (3) the objects of his or her bounty.” In re Estate of Harris, 2015 MT 182 (2015).
Undue influence. A will is supposed to reflect the wishes of the testator. When someone’s influence over the testator becomes so great that the will ends up not reflecting the wishes of the testator but of the influencer, the will would not be valid. Undue influence requires “specific acts showing that undue influence actually was exercised upon the mind of the testator directly to procure the execution of the will.” In re Estate of Mead, 2014 MT 264 (2014)
Improper execution. An important safeguard to ensure that wills that are probated are authentic is the manner of execution. The law is very specific as to how a will must be executed. If any of the formalities are absent, the court may reject the will. Mont. Code Ann. § 72-2-522.
Duress. If a testator did make a will out of their own free will, but because they were forced to because they were threatened or injured, the will would not be valid.

Consequences of a Will Contest

If the court determines that the will is invalid, then either a prior or later valid will would be probated or the decedent’s estate would be distributed according to Montana’s law of intestate succession. This means that estate property would go to the decedent’s next of kin as described in the statute

Penalty Clause for Contest

Expenses of Will Contests

Montana law provides that the expenses related to a will contest such as attorney fees and costs must be paid by the party contesting the validity of the will if the will is confirmed. If the will is not confirmed, costs, but not attorney fees, must be paid by the party who resisted the revocation or out of the property of the decedent, as the court directs. Mont. Code Ann. § 72-12-206