Can I Contest a Will?

Can I Contest a Will?

When a person contests a will, they’re arguing that the will isn’t valid. A will can be contested because an individual claims that the deceased person didn’t possess the required capacity to make a will, was unduly influenced or insane, made a more recent will, or there was fraud, duress or forgery. A will can also be contested because it contains technical flaws.

The Carroll County (MD) Times’ article, “Contesting a will is difficult; only an ‘interested party’ is eligible,” explains that to be eligible to contest a will in Maryland, you must be an “interested party.” This means you’re named in the will or would have been eligible to inherit by law, if the deceased hadn’t written a will.

In Mississippi, contested wills are heard by the Chancery Court.  Chancellors are tasked with hearing and deciding contested cases. They direct the actions of personal representatives (executors) and pass orders for administering an estate.

The person contesting a will has the burden of proof, meaning that she must show that the will isn’t valid. Other interested parties aren’t required to prove that the document is valid, but they may be called to testify, if they were present or involved when the deceased person made the will or signed and executed it.

Make no mistake: challenging a will is difficult. Courts regard a will as an expression of the deceased person’s wishes, and since he’s not around to tell the court, “No, that’s not what I meant,” judges are hesitant to make changes in the will as written.

This is a good reminder to be certain your will says what you want it to say. If it doesn’t, work with a qualified estate planning attorney to have revisions made or codicils (additions that modify or explain provisions in the will) added to reflect your intent accurately.

If a will is successfully contested, the estate is then treated as if the deceased died without a will or intestate. This doesn’t guarantee that the challenger will get some of the estate, because it’s based on where she is in the line of succession set out in state intestacy laws. If a person dies without a will, priority in the distribution of his estate will be as follows in Mississippi:

  • First, to the children and the descendant’s of children who died prior to the deceased individual (Under Mississippi’s laws of intestacy, a spouse is treated like a child as far as his or her share of the estate is concerned);
  • Second, to the decedent’s father, mother, brothers, sisters, and descendants of brothers and sisters who predeceased the deceased individual;
  • Third, to the grandparents and uncles and aunts.

If none of the relatives listed above exists, succession continues to any blood relatives of the highest degree defined by Mississippi law.

In the event there’s no qualifying relative, the estate goes to the State of Mississippi.  If the deceased was on Medicaid, the assets of the deceased may be required to be paid to the State of Mississippi Division of Medicaid.

Reference: Carroll County (MD) Times (November 23, 2018) “Contesting a will is difficult; only an ‘interested party’ is eligible”