Will Contest

A will is a document that specifies how the assets of a decedent are to be distributed. When someone passes away, to initiate probate and the administration of the estate, the will must be filed with the Probate Court along with a petition for probate. The initiating of the probate procedure triggers notices to family members and anyone else who has an interest in the matter. A will contest is a lawsuit initiated by an interested party during which the validity of the will that was submitted is challenged.

Legal Standing

A will may only be challenged by those who have standing to do so. This means that the objectant’s financial position will be impacted by the outcome of the case. For example, beneficiaries named in the will that was filed, beneficiaries named in a prior will, and intestate heirs would have standing because whether they will receive an inheritance from the decedent’s estate depends on whether or not the will is admitted.

Time Frame

A challenge to a will must be filed within 6 months of the time the will was admitted. It is critical not to miss this deadline as the court may refuse to listen to arguments challenging the validity of the will even if they are supported by evidence.


The law requires that an objectant have legally sufficient reasons for asserting that the will should be invalidated. There are only a limited number of reasons that will support a will contest.

  • Incompetent testator. One of the requirements for making a valid will is that the testator must not be mentally incapacitated when they executed the will. This is described as the testator being of “sane mind.” The testator must also have reached the age of 18. If they are married, they can make a will even if they are under 18. If these requirements were not present at the time the will was executed, the will would not be valid. RSA § 551:1
  • Improper execution. To be valid in New Hampshire, the will must in writing, it must be signed by the testator or by some person at his or her express direction in his or her presence, and it must be signed by 2 or more credible witnesses, who attest to the testator’s signature. RSA § 551:2
  • Fraudulent. A will would be fraudulent if someone intentionally concealed a material fact from the testator or if someone intentionally made a false statement of a fact to the testator that impacted the contents of the will.
  • Duress. The law requires that testators make wills because they want to. If they are forced to, the will would not enforceable.
  • Undue influence. If the will was made based on someone illegally manipulating or pressuring the testator to do so, it would not be valid.

Note that the burden is on the objectant to prove its invalidity.

Consequences of a Will Contest

If the objectant loses the will contest and the court finds that the will is indeed valid, then the administration process will move forward based on the terms of that will. On the other hand, if a will contest is successful, then the Probate Court will throw out the will. If there is a prior or later valid will, the court will probate that one instead. Otherwise, the court will declare the decedent to be intestate and the decedent’s estate will be disbursed based on New Hampshire’s intestate succession laws. RSA § 561:1

Under intestate succession, the surviving spouse, children, and parents are the decedent’s primary heirs. The spouse inherits everything in the absence of children or surviving parents. If there is not a surviving spouse, but there are children, then the children inherit everything. If there are surviving parents, but no surviving spouse or children, the parents inherit everything. Other rules apply based on who survives the decedent and their degree of relatedness.

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