Will Contests

General Information

A will contest is a court proceeding in which a beneficiary or potential beneficiary under a will seeks to challenge its validity and disallow probate. The challenger opposes other interested parties, most often those offering the document for probate, with the goal of nullifying the will. As a result of a successful contest, the decedent (person who passed away)’s estate passes through intestacy/partial intestacy, or perhaps a different document (i.e., a previous will) is probated as the decedent’s last will and testament. For testators, our firm seeks to avoid these challenges by drafting wills with particularity and ensuring proper execution so that our clients’ intentions are ultimately carried out. However, we also represent persons contesting a defective will to obtain a more fair and accurate distribution in accordance with the decedent’s intent.

Purpose/Necessity

There may be a variety of reasons that you feel justified in challenging a loved one’s will. Ultimately, as persuasive as some circumstances may be, courts will invalidate a will for limited reasons, including:

    1. The testator (will drafter) didn’t have capacity to make a will. Kentucky law requires that a testator be eighteen or older, though a minor who is a parent may make a will for the narrow purpose of appointing a guardian for their child. KRS 394.030. The age requirement is not a common source of will contests because age is usually clear cut and easy to prove. More often, family members seek to prove that the testator was not of sound mind when the will was executed, though only the time of execution is relevant. See New v. Creamer, 275 S.W.2d 918 (1955). It is important to note that the standard used by courts to determine mental capacity is very low – lower than that required to enter a contract. Drug use, a history of psychiatric disorders, eccentricities, and very strange distribution schemes are not enough to invalidate a will on their own. Even if the testator suffered from a proven mental illness, is presumed that the testator executed the will during a “lucid interval” and the burden is on the contestant to prove otherwise. Bye v. Mattingly, 975 S.W. 2d 451 (1998).
    2. The execution formalities were defective. Holographic wills must be wholly written in the testator’s handwriting and signed. Non-holographic wills must be acknowledged by the testator in the presence of two subscribing witnesses and subscribed at the bottom of the will. KRS 394.040. While these rules may seem like minor technicalities at first blush, they are strictly adhered to by Kentucky courts because they indicate the authenticity of the document.
    3. The testator lacked testamentary intent. This item is unlikely to be contested in the case of a non-holographic will. The required formalities indicate that the testator was serious about making this document his or her last will and testament. On the other hand, it can be difficult to determine whether a holographic will is a will at all. Written entirely by the testator, they can appear rushed and often do not dispose of his or her whole estate. Some are written on napkins or scrap paper and cause courts to seriously wonder whether the writer wanted to give this document legal effect. Ultimately the writer must intend for this document to dispose of his or her property at death. A deed, a letter, or other instrument may operate as a valid will with the proper purpose shown, see Mallory v. Mallory 862 S.W. 2d 879 (1993).
    4. The testator was subject to undue influence or duress. Undue influence means that someone was exerting power over the testator to the point that they overtook his or her free will. The Kentucky Court of Appeals has stated that to invalidate the will, there “must be such influence as obtains dominion over the mind of the testator to the extent that destroys every chance of the exercise of his own will on his part in the disposal of his estate.” Bodine v. Bodine, 44 S.W. 2d 840 (1931). This is a heavy burden, but drafters should still consider how to avoid the appearance of it.
    5. The will is a forgery or is otherwise fraudulent. A forged will is self-explanatory, though another person can sign the testator’s name at his direction, as long as it is done in his presence. KRS 394.040. Fraud may occur when, for example, an interested person has an elderly or infirmed testator sign a will while telling the testator that the document is something else, like a power of attorney.
    6. The will presented for probate has been revoked, perhaps by a later will. The most recent will should be given effect. There may be questions as to whether a subsequent will exists, or whether a subsequent document constitutes a will. Without revoking the first will by physically destroying or cancelling it, a properly executed later document may be considered a codicil unless it is plainly revokes all prior wills or gives away at least as much of the testator’s estate as the prior document. See KRS 394.080.
    7. There was an ambiguity or mistake that requires the court to clarify or reform the will. Any mistake will not do. Courts will generally not reform or rewrite a will unless there is a mistake that is clear on the face of it. An example of such a mistake, often just a typo, is when a testator makes a gift but does not specify to whom. In this situation, the will is insufficient to guide the executor as to how to distribute the gift. The Court of Appeals of Kentucky explained the limits of this narrow rule: a will void on its face “with vacuity and utter vagueness scarring its countenance like pock marks, might be adjudged an invalid instrument,” Cambron v. Pottinger, 193 S.W. 2d 412 (1946).

If a term is ambiguous, heirs may ask the court to decide how it should be interpreted. Only if the court cannot construe the language on its face may outside evidence be introduced. Essentially, if a will makes sense to the reader, it has a plain meaning and will not be reformed not matter how much outside evidence exists to demonstrate that the testator had a contrary intention. For instance, imagine that a man’s will bequeathed his estate to Charity A. Even if Charity B could show that the man was deeply involved and made lifetime gifts to their organization, Charity A would probably still inherit.

Frequently Asked Questions

  • Who can initiate a will contest?
    • Someone with an interest in the will: either a named beneficiary, or someone who would inherit through intestacy if the will were invalidated.
  • Are wills likely to be contested?
    • No. Hiring an attorney to contest a will can be very costly, so it’s typically not done unless there is a significant amount of property at stake. In turn, persons with large estates typically have detailed, lawyer-drafted wills that are careful to explain any unnatural dispositions.
  • What’s an anti-contest clause? Is it effective?
    • An anti-contest clause states that anyone who contests the admission of the will to probate forfeits his or her share. The provision is often found to discourage litigation where a testator disinherits a close relative or makes unequal distributions to children. Kentucky courts have held that these provisions are usually valid, but are construed narrowly, meaning the court will interpret the clause carefully considering its express terms.
  • How and when is a will contested?
    • Wills are most often contested when someone has been disinherited and when a will differs dramatically from a prior will. If someone alleges any of the above grounds to contest a will, they will file a petition in the Circuit Court of the county in which the will was probated by the District Court. The action must be brought within two years of admission of the will to probate. KRS 394.240. The petition will state the grounds and ask the court to order the executor to halt distributions and declare the document invalid. In the alternative, those bringing an action can ask the court to interpret and/or reform the will.
  • How will the court construe my will?
    • The document itself is paramount. If the language is clear, the court will not try to figure out what you intended by considering extrinsic evidence. Instead, the court will look to the will itself (including any codicils) to determine what you intended by what is written.
  • It sounds like courts are unlikely to invalidate a will. Is it worth it to try?
    • Potentially. Of course some challenges are based on bad feelings more than legally valid reasons supported by evidence. But you may not know the likelihood of success unless you speak to a lawyer.
  • If someone successfully contests a will, what happens?
    • It depends what has been sought. As discussed above, courts are unlikely to reform or rewrite a will. If the court invalidates the will, the estate will probably pass through the state’s intestacy laws.
  • I don’t want my family fighting over my will. How can an attorney help me avoid a contest?
    • Attorneys are knowledgeable about how best to avoid the pitfalls discussed above. An attorney will draft your will according to your wishes using language that clearly displays your reasoning.

Legal Services Offered and Cost

Initiate or Defend Against a Will Contest

Legal fees: hourly rate

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