Will Contest

In West Virginia, a will contest is a formal objection, raised in probate court, to the validity of a will. After someone dies, for their estate to be settled and assets distributed, their will must first be probated. This involves the will being filed with the county court (Circuit Court) and the judge making a determination as to whether to admit it to probate. The court in the West Virginia county in which the decedent was a resident at the time of their death has jurisdiction of the estate. W. Va. Code § 41-5-4.

Typically the process only involves the judge reviewing it to confirm that it meets the technical requirements of West Virginia law. If so, the judge will admit it to probate and appoint a personal representative to manage the estate administration process. If someone files an objection to the will, the judge will not admit it to probate. Instead, the process of reviewing the will becomes a much more complicated process and takes the form of a will contest.

Who Can Contest It Will in West Virginia

The law requires that for someone to bring a legal action, they must have standing to do so. This means that a litigant must have a sufficient relationship to the issue that they want addressed by the court. When it comes to a will contest, the court requires that an objectant have an immediate financial interest in the outcome of the matter.

In a will contest, those with standing include those named in the will as beneficiaries because their financial position would be negatively impacted if the will is invalidated. Those who are the decedent’s intestate heirs also have standing because if the will is invalidated, their financial position would be positively impacted. In addition, those who are beneficiaries to a prior will would also have standing because if the contested will is invalidated, the prior will may be probated, positively impacting the beneficiaries of the prior will.

Procedure for Contesting a Will in West Virginia

To initiate a will contest or an impeachment of the will, the objectant must submit a written objection. The objection must state the reasons for the objection. Generally, a will contest must be filed within six months from the date of the probate order. However, the time frame can be extended if at the time the probate order was issued one of the following circumstances existed:

  • The objectant was under the age of 18
  • The objectant was a convict
  • The objectant was mentally incapacitated
  • The objectant was a non-resident who did not appear as a party and was not summoned

W. Va. Code § 41-5-12.

Grounds for Contesting a Will in West Virginia

Another rule related to contesting a will is that the objectant must have a recognized legal reason for challenging the validity of the will. Family members are sometimes surprised and angry about the contents of a will. Those emotions may lead to a feeling that the will could not possibly be valid. The court needs more than that. The following are the leading grounds for contesting a will:

  • The testator did not have the legal capacity to make a will. To make a valid will, the testator must have the legal capacity to do so. They must have attained age 18, legal adulthood. They must also have had mental capacity. This means that they must not have suffered from any type of cognitive impairment that would have impacted their ability to understand what it means to make a will and who their heirs are. W. Va. Code § 41-1-2
  • The testator was under undue influence. If a testator is induced to make a will out of other than their own free will, undue influence would exist and the will would not be valid. The essence of a will is that it represents the wishes of the testator. If their wishes were substituted by the wishes of someone else who manipulated the testator, the court would find that the will is invalid.
  • The will was improperly executed. There are technical requirements that must be present during the execution ceremony. For example, the testator must sign the will and it must be witnessed by at least 2 people who also sign it. The absence of these requirements is ground for invalidating the will. W. Va. Code § 41-1-3

If a will contest is successful, the court will not probate the contested will. Instead, either another will that is valid will be probated or the decedent would be intestate. If the estate is intestate, West Virginia’s intestate succession law will determine how assets will be distributed.

Contact Information