Probate Litigation FAQ

On what grounds can a will be challenged?

There are five grounds that a will can be held invalid on:

• Undue influence - this ground asserts that a third party coerced the testator into creating the challenged will
• Mental Incapacity - this ground asserts that the testator was mentally incapable of understanding the significance of creating the challenged will
• Will formalities were not followed - this ground asserts that the challenged will was not executed in compliance with the law, perhaps due to the fact there were no witnesses, or that the testator did not actually sign the will
• Subsequent Revocation - this ground asserts that the challenged will was revoked, either by a more recent will or by operation of law (for instance: a subsequent marriage makes any prior will null and void)
• Fraud or Mistake - this ground asserts that the testator was deceived by a third party by a misrepresentation, and the challenged will would never have been created but for that misrepresentation.

Back to top

If I have a dispute with my relatives over a will, do I have to sue them?
Not necessarily. Many cases of this nature are often confidentially resolved prior to filing a lawsuit, sometimes with the assistance of an impartial, professional mediator. However, if all settlement efforts fail and you still wish to pursue your claim, it is likely you will have to file a lawsuit.
Back to top

What are my rights if an executor won’t pay me my portion of an inheritance after a loved one dies. 
You do not have a right to force distribution of your share of the estate sooner than one year after the date of your loved one’s death. This is because creditors of the estate have up to that long to present claims against the estate. You are entitled to share in only so much of the estate as is left after all the creditors are paid. Even after the one year has expired, if there are pending claims against the estate or contingent tax liabilities, the executor will be justified in retaining a reasonable reserve to cover these contingencies. If you have not received any distribution after the one-year period has expired, you can bring a suit against the executor for payment, but the executor may have a partial defense by way of a need for the reasonable reserve just mentioned.
Back to top

Can I contest my deceased husband’s will where he left $25,000 to me and the rest of his estate to his children from his first marriage?
Although you could contest your husband's will, it would be a mistake to do so unless you have a reasonable basis for contending that he was the victim of undue influence or was not of sound mind when he signed the will. However, assuming your husband's estate exceeds $75,000, you have a right to receive $25,000 outright plus the income for life from one-third of the personal property and one-third of the real property in his estate minus the $25,000. To claim this share in the estate, you must file with the probate court a form waiving the will within six months after the date of the will's allowance. In determining the value of your husband's estate for purposes of computing your one-third interest, certain assets transferred by your husband during his life may be includable, particularly assets transferred to certain types of trusts.
Back to top