Taking a Will to Court

Yes, you can challenge a will or trust, but contesting these documents can be complex and is typically successful only under specific circumstances. Here’s a guide to understanding when and how you might contest a will or trust, along with some important factors to consider:

Grounds for Contesting a Will or Trust

To successfully challenge a will or trust, you must generally have one or more valid legal grounds. Here are the most common reasons:

Lack of Capacity

If the person who created the will or trust (known as the “testator” for a will and “grantor” for a trust) was not mentally capable of making informed decisions, this could be grounds for contesting it.

Examples include cases where the testator had dementia, severe mental illness, or another condition impairing their judgment at the time of signing. Medical records, testimony from healthcare providers, and witness statements are typically used as evidence.

Undue Influence

If you believe that the testator was pressured, manipulated, or coerced by someone into creating or changing the document in a way that does not reflect their true wishes, this may be a case of undue influence.

Evidence might include isolating the testator from family and friends, unusual changes in behavior, or a sudden change in beneficiaries that benefits someone close to them, such as a caretaker or family member.

Fraud or Forgery

Fraud occurs if someone tricked the testator into signing a document they did not fully understand or if the document’s contents were misrepresented.

Forgery, in contrast, involves outright falsification of the testator’s signature or the document itself. Proving fraud or forgery requires substantial evidence, including expert analysis of handwriting and testimony from individuals familiar with the testator’s signing habits.

Improper Execution

Wills and trusts must meet specific formal requirements to be valid. For example, in Virginia, a will typically must be signed by the testator in the presence of at least two witnesses who are also required to sign.

If the will or trust was not properly executed according to state laws, it may be invalid. Issues such as missing signatures, lack of witnesses, or procedural mistakes can be grounds for contesting it.

Terms Violate State Laws or Public Policy

If the terms of the will or trust contradict state laws or contain illegal provisions, those terms may be deemed unenforceable. For example, a provision that prevents a beneficiary from marrying could violate public policy and be challenged.

Who Can Challenge a Will or Trust?

Generally, only those with "standing" — or a legitimate interest in the outcome — can contest a will or trust. This typically includes:

Beneficiaries: Individuals who are named in the will or trust.

Heirs-at-law: Close family members who would inherit under state law if the will or trust did not exist, such as children, spouses, or siblings.

The Process of Contesting a Will or Trust

Filing a Lawsuit: To contest a will or trust, you will need to file a lawsuit in probate court. You must usually act quickly, as there are often strict deadlines, called “statutes of limitations,” for contesting wills and trusts.

Gathering Evidence: Evidence is essential for proving your claim, whether it’s medical records for incapacity, documentation of suspicious circumstances for undue influence, or expert testimony for forgery claims.

Negotiation or Court Ruling: In some cases, parties can negotiate a settlement to avoid litigation, particularly if there is a strong case for contesting the document. If not, the matter will go to trial, where a judge will make a ruling based on the evidence presented.

Things to Consider Before Challenging a Will or Trust

Legal Costs: Contesting a will or trust can be costly, especially if the case goes to trial. Legal fees and expenses related to gathering evidence can add up, so it’s essential to evaluate the likelihood of success before proceeding.

Emotional Impact: Probate disputes can strain family relationships, particularly when multiple parties are involved. Consider the potential personal impact of challenging the will or trust.

Likelihood of Success: Courts generally uphold wills and trusts unless there’s substantial evidence supporting the challenge. 

If you believe the document does not reflect the true wishes of your loved one, consulting with an experienced attorney can help assess the strength of your case.

Consult with an Attorney

Challenging a will or trust is a complex legal process, and success depends on the specific circumstances and evidence available. At SMITH | ASHCRAFT, we can help you understand your rights and guide you through the steps if you believe a will or trust is invalid.

Contact us to discuss your options and protect your interests.