If your loved one recently passed or is expected to pass soon, you may have concerns regarding the distribution of their assets according to their will. It’s completely normal to have concerns regarding a loved one’s will.
In order to legally address your concerns about the will, you’ll need to have legal grounds to challenge it and you will need to file a complaint to contest it.
Keep reading for the answers to your questions about contesting a will.
Frequently Asked Questions About Contesting a Will
What does it mean to contest a will?
When you contest a will, you are challenging its validity in court. It’s best to consult an experienced will contest attorney if you’d like to do this so that you have the best possible chances of receiving the portion of the estate that is rightfully yours.
What steps should be taken to contest a will in Virginia?
To contest a will in Virginia, you’ll need to follow these three steps:
- Confirm that you are an "interested person" by legal definition
- Determine whether or not you have valid legal grounds to contest the will
- File a complaint in court explaining your interest and reason for challenging the will (Virginia Code section 64-1.88)
Can I contest a will just because I want to?
No, you can’t contest a will simply because you want to. You need to have a legal basis for your claim in order to have a viable case. Even if the asset distribution is unfair, that isn’t enough; you need more in order to challenge a will in court.
It’s possible that you’ll only have standing if you were named in one of the decedent’s previous wills, or you would’ve been eligible to inherit property if the will didn’t exist.
Who may contest a will?
Not just anyone can contest a will. In order to have the standing to contest a will, you’ll need to demonstrate that the will was drafted improperly or illegally in some way.
The following people, referred to as interested parties, have the standing to contest the will:
- Beneficiaries named in a previous will, who were written out of the most recent version of the will, or whose estate share was substantially reduced by the newest will
- Any person not named in the will but who, due to Virginia’s intestacy laws, would be eligible to inherit the assets if a will didn’t exist
However, it is not just enough to have standing. You will also need a valid reason to challenge the will.
What are valid reasons for contesting a will?
The following are valid reasons for contesting a will:
- The testator was not mentally competent
- The person whom the last will and testament belongs to, known as the testator, must be mentally sound—must have understood what he or she was doing when writing or signing the will.
- If the testator is mentally sound, or competent, when writing or signing the will, then he or she is considered to have testamentary capacity.
- The testator was under undue influence
- If the testator is taken advantage of, tricked, or coerced by a relative or another person to write a will or to include a challenged provision, then this is referred to as undue influence. This can occur, for example, if a relative, a caregiver, or another acquaintance maliciously persuades the testator to bequeath to him or her a larger share of the estate.
- If a will or a gift is a result of coercion, it can be challenged in court.
- Not all laws were followed when writing the will
- The will must abide by the following laws in order to be valid:
- The will must be properly signed by the maker and by two witnesses in each other’s presence
- If the testator makes modifications to a will, it must be in a separate document called a codicil or in a new will. The codicil or the new will usually must also be signed by the maker and two witnesses in each other’s presence
- The testator must have the right to allocate the property named in the will
- The testator must not have been tricked or deceived into signing the will
- Forged and fraudulent wills are invalid
- Holographic wills are handwritten wills and may be valid even if they do not include all the essential legal formalities
- These wills can still be valid if the court approves, but they are often more susceptible to contest
- The will must abide by the following laws in order to be valid:
- There is a more recent version of the will
- When a new will is made, the new version of the will revokes any previous versions. As long as it is properly executed, the maker is competent, and there is no undue influence, then the most recent version of the will is likely valid.
- The will is incomplete
- Certain legal requirements must be satisfied in order for a will to be considered complete and valid. Anything from missing signatures to the omission of the beneficiary names can invalidate a will.
What is the time limit to contest a will?
The time limit for most will contests is one year from the date a will is probated (filed in the clerk of court’s office), however, there are circumstances that may shorten that time limit. This filing period may also be extended for certain minors and individuals who are incapacitated.
A lawyer will need time to meet with you, conduct an investigation, and if grounds to challenge a will exist, to draft a complaint, so it is important for you to seek assistance and talk to an attorney as early as possible.
We Are Here to Help
Losing a loved one is never easy, and dealing with contentious estate issues can make the situation even more painful, frustrating, and worrisome. If you need to contest your loved one’s will, we are here to help. Our team here at Obenshain Law Group is highly skilled in the area of will contest and has helped many other people just like you. Let us see if we can help you, too. Don’t delay—contact our office with any questions you may have right away.
If you need to contest a loved one’s will, our lawyers at Obenshain Law Group can help you seek the justice your family deserves. Give us a call at (540) 318-7360 or fill out an online contact form.