A will contest is a lawsuit that challenges whether a will is valid and should be enforced. The person contesting the will (the contestant) generally faces the people offering it for probate, with the goal of setting the will aside. If a contest succeeds, the estate may pass under an earlier will or under Kentucky’s intestacy laws.
We help clients on both sides: we draft and supervise the signing of wills with care to reduce the risk of a challenge, and we represent people who believe a will does not reflect the decedent’s true wishes, as well as those defending a will. For an overview of the court process for estates in general, see our Probate page and our page on will contests and estate disputes.
This page offers general information about Kentucky law, not legal advice. Reading it or contacting us does not create an attorney-client relationship; that begins only when we agree in writing to represent you. See our advertising notice.
Grounds for Challenging a Will
Courts set wills aside only for limited reasons. Common grounds include the following.
Lack of Capacity
In Kentucky, a testator must be at least 18 (KRS 394.030), though a minor who is a parent may make a will for the limited purpose of naming a guardian for his or her child. More often, a contest asserts the testator was not of sound mind when the will was signed, and only the time of signing matters. See New v. Creamer, 275 S.W.2d 918 (Ky. 1955). The standard for testamentary capacity is a modest one, and evidence such as drug use, a history of mental illness, eccentric behavior, or an unusual distribution plan is often not enough by itself. Where a testator had a mental illness, the contestant may face the burden of showing the will was not signed during a lucid interval. See Bye v. Mattingly, 975 S.W.2d 451 (Ky. 1998).
Defective Signing
Kentucky has strict signing requirements. A holographic will must be wholly in the testator’s handwriting and signed. A will that is not handwritten must be signed or acknowledged by the testator before at least two credible witnesses, who sign in the testator’s presence and in each other’s presence (KRS 394.040). Courts take these formalities seriously because they help show the document is authentic. See our page on holographic wills.
Lack of Testamentary Intent
The writer must have meant the document to dispose of property at death. This issue arises most often with handwritten notes, which may be rushed, incomplete, or written on scrap paper. Even a deed or a letter can operate as a will if the required intent is shown. See Mallory v. Mallory, 862 S.W.2d 879 (Ky. 1993).
Undue Influence or Duress
Undue influence means someone exerted such power over the testator that the will reflects the influencer’s wishes and not the testator’s. Kentucky courts have described it as influence that gains dominion over the mind of the testator to the extent that it destroys the testator’s free exercise of his or her own will. See Bodine v. Bodine, 44 S.W.2d 840 (Ky. 1931). This is a heavy burden of proof, but it is one drafters should keep in mind when advising testators.
Forgery or Fraud
A forged will is invalid. Fraud can occur if, for example, an interested person has an elderly or ill testator sign a will while telling the testator it is something else. (A person can, however, sign the testator’s name at the testator’s direction and in the testator’s presence under KRS 394.040.)
Revocation
A will that has been revoked, perhaps by a later will, should not be given effect. Questions may arise about whether a later document exists or is a will, and whether it revoked the earlier one or only added to it (KRS 394.080).
Ambiguity or Mistake
Courts are reluctant to rewrite a will. They will interpret unclear terms, using outside evidence only when the language cannot be understood on its face. A will that is unintelligible on its face may fail. See Cambron v. Pottinger, 193 S.W.2d 412 (Ky. 1946). If the language is clear, it generally controls, even if outside evidence suggests the testator meant something different.
Timing
A person who is aggrieved by the District Court’s decision to admit a will to probate or reject it may bring an original action in Circuit Court in the same county. The action must be brought within two years after the District Court’s decision, and notice of the action must be lodged with the county clerk (KRS 394.240). Related deadlines can be much shorter, for example a surviving spouse’s six-month period to renounce a will, so if you have concerns, do not wait. Contact us promptly.
Frequently Asked Questions
Who can start a will contest?
Someone with a financial interest in the outcome: a beneficiary named in the will, or a person who would inherit if the will were set aside.
Are wills often contested?
Most wills are not. Contests are more likely where someone has been disinherited, where the will differs dramatically from an earlier one, or where there is a large amount at stake. A carefully drafted and properly signed will that explains unusual choices can reduce the risk.
What is an anti-contest clause? Is it effective?
An anti-contest clause says that a beneficiary who challenges the will loses what the will gives him or her. Whether such a clause will be enforced depends on the wording and the circumstances, and it may not fully deter a beneficiary who has little to lose. We can discuss whether to include one in your will.
How will a court read my will?
The document itself is paramount. If the language is clear, the court will not consider outside evidence of what you meant. The court looks to the will (with any codicils) to determine what you intended by what you wrote.
If courts rarely invalidate wills, is it worth challenging one?
Possibly. Some challenges rest on hard feelings more than legal grounds supported by evidence. But you can’t know the strength of your case until you talk to a lawyer.
What happens if a contest succeeds?
It depends on what is sought. If the court invalidates the will, an earlier will may be probated, or the estate may pass under Kentucky’s intestacy laws.
How can I avoid a family fight over my will?
Work with an attorney who can draft clearly, explain the reasons behind your choices where appropriate, and supervise the signing, and consider whether a trust may suit your family.
Legal Fees
Legal fees: $300 per hour. This applies to initiating or defending a will contest, and includes our consultation on the merits of your case. We will explain our fee arrangement and the likely scope of work at the start and put the engagement terms in writing before we begin.
Contact Us
To talk with us about this matter, call (859) 444-4695 or contact our office. If it is easier to start online, our secure intake form works too. We are located at 226 N. Upper St., Lexington, Kentucky 40507.