Will Contests: Who, When, Why, And How
A person close to you passed away and you are devastated. Sometime after, someone files a last will and testament for your loved one in the court and begins the probate process. You review the will and realize there is something terribly wrong. Maybe the will doesn’t appear genuine, maybe it gives a giant chunk of your loved one’s possessions to someone who has no business receiving them, or maybe you know of a different will that you believe is the correct recitation of your loved one’s wishes. You want to challenge the will that has been filed, but how do you even begin?
WHO CAN CONTEST A WILL?
Washington law allows “any person interested in any will” to challenge the will. RCW 11.24.010. To be “interested” means that you are either a natural heir of the person (i.e., a spouse or blood relative) or you are named as a beneficiary in the challenged will or some other version of the will. At its essence, you must have some argument and potential route for receiving a portion of the estate. If you are simply a concerned bystander with no possible interest in the estate, you cannot contest the will.
WHEN CAN YOU CONTEST A WILL?
A will can be contested for a period of four months after it has been admitted to probate. This is a strict time limitation that is rigidly enforced by the courts. If you are even one day late, your will contest is almost certainly going to be dismissed. The only exception to this is if you can prove that the person probating the will failed to serve an interested party with notice of the probate; in such a case, the four-month period is tolled until proper service is made. For example, if one of the named beneficiaries of the will is Cousin Jed, and Cousin Jed was never served with notice of the probate, the four-month period does not begin until Cousin Jed is properly served.
WHY SHOULD YOU CONTEST A WILL?
A will should be contested when it is not a fair and honest representation of your loved one’s last wishes. There are multiple reasons to contest a will:
- The will does not meet the formal requirements of an enforceable testamentary document. For example, every valid will must have two non-interested witnesses who sign an attestation that the named testator actually executed the will. (See RCW 11.12.020 for the recitation of all elements of a valid will.)
- The will is an older version that was later disclaimed by the testator (i.e., there is a more recent will that took the place of the old will).
- The will was procured by a bad actor through undue influence. (See Andrew M. McKenzie’s 6/3/2019 article on undue influence for an explanation of this legal concept)
- The testator did not have sufficient testamentary capacity to make the will. (See Andrew M. McKenzie’s 3/27/2019 article on testamentary capacity for better understanding)
- Any other reason that could affect the validity of the will.
HOW DO YOU CONTEST A WILL?
Will contests are complicated and you almost always need the assistance of an attorney to navigate the procedures and laws. An attorney can draft the necessary petition and get it filed with the court. It is also imperative that the petition be personally served on the personal representative of the estate. It is not enough to serve the petition on the attorney for the personal representative; Washington law is very strict and narrow when it comes to proper service, and a failure to serve exactly as required will be fatal to your will contest.
BUT WAIT… WHAT IS A “NO-CONTEST CLAUSE”? Some wills have a provision that states if anyone contests the will and fails to prevail in court, they will forfeit their entire inheritance provided by the will. If you are challenging a will that has already completely cut you out of any inheritance, then you have nothing to lose. But if you still stand to inherit from the will you are contesting, you can lose your entire share if the court does not ultimately agree with your challenge. As a result, the strength of a will contest should be carefully considered before filing your challenge, and this is even more reason to hire an attorney to represent you before filing a will contest. There is a “safe harbor” in Washington which may allow you to save your inheritance after an unsuccessful will contest if you can prove that you relied on the advice of legal counsel and acted in good faith and with probable cause.