Will Contest

A will is a legal document that specifies who gets a person’s property once they have passed away. When created and executed according to the laws of Virginia, a will is a legally enforceable document. However, if there are questions as to whether the will does indeed reflect the wishes of the decedent, the will can be challenged in a special type of lawsuit called a will contest. A will contest must be initiated in the appropriate Circuit Court, as Circuit Courts have jurisdiction over probate matters in Virginia. VA Code § 64.2-443A.

Who Can Contest It Will

Only those who have in immediate financial interest in the proceeding have a right to object to a will. The Supreme Court of Virginia has described “interested party” as someone who has “a legally ascertainable, pecuniary interest, which will be impaired by probating a will or benefited by setting aside the will, and not a mere expectancy.” Martone v. Martone, 509 S.E.2d 302 (Va. 1999). Generally , this would include only beneficiaries that the decedent identified in the will that is being challenged, beneficiaries of a prior will, and those who would be entitled to inherit in the absence of a will.

Procedure for Contesting a will

There are two ways that a person with standing can initiate a will challenge. After the will has been accepted to probate, the objectant can appeal the order accepting the will. This must be done within 6 months after the will is accepted. The objectant can also file a complaint with the Circuit Court to impeach the will. VA Code § 64.2-448. The complaint must be filed within one year of when the will was accepted.

Grounds for Contesting a Will

There are only a handful of legal grounds for contesting a will, including:

  • Incompetent testator. A will contest can be based on an allegation that the testator did not have the legal capacity to execute a will. Under Virginia law, a person is competent to make a will if the testator must have been mentally competent at the time that they executed the will and the testator must have either reached the age of majority (18) or must have been an emancipated minor. VA Code § 64.2-401
  • Improper execution. If the will was not executed in the manner required by Virginia law, it would not be valid. The law requires that a will must be in writing and that the testator sign it in the presence of at least two competent witnesses. VA Code § 64.2-403. There is a limited exception to the general rule of how a will must executed. Under VA Code § 64.2-404, if there is clear and convincing evidence that the testator intended a document to be their will, the court may probate it even if all the formalities of execution were not present.
  • Duress. While the requests and advice of family, friends, and advisors may influence a testator’s estate plan, a testator’s will must be made based on their own free will. It must be voluntary. Otherwise, the will would not be valid. In some instances the duress involves the use of violence, while in other instances it involves the threat of violence or the threat of some other type of harm. Regardless, a will made under duress would not reflect the wishes of the testator and would not be valid.
  • Undue influence. If someone uses their influence over the testator’s will in a way that benefits themselves, that would be invalid. Undue influence typically occurs when the testator is ill or isolated and dependent on someone for care or companionship and that person takes advantage of that relationship.

Consequences of a Will Contest

If a will contest is successful, then the Circuit Court will revoke probate. If there is a prior valid will, the court will probate that will instead. Otherwise, the court will declare the decedent to be intestate. Intestate means that the decedent does not have a will and that their estate will be distributed to their next-of-kin according to Virginia’s intestate succession laws. VA Code § 64.2-200.

As with any probate disputes, a will contest will also delay the estate administration and may be costly to the estate.

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