For someone to contest a will, he or she must be an “interested party” to the estate with “standing.” Generally speaking, an interested party with standing is someone who has something to gain or lose by challenging the will. Children almost always have standing, and many challenged wills involve a child contesting their inheritance.

 

Beneficiaries to the will

Anyone who is listed as a beneficiary in the will is an interested party with standing. Most of the time the list of beneficiaries is predominately composed of family members, but that’s not always the case—if the decedent named any friends, business associates, businesses, or charities in their will, they would also be considered interested parties with standing to contest the will.

 

Legal heirs

When someone dies without a will, they die “intestate,” and their estate will be transferred to their legal heirs according to the state’s intestacy laws. If someone dies with a will but the document is partially or fully invalidated by a probate judge, then the portion of their estate that’s affected by the invalidated will proceeds through probate according to intestacy laws as if the will never existed. As such, family members who stand to inherit an estate through intestacy proceedings may have standing to contest a will, even if they’re not listed as beneficiaries in the will. The logic is that legal heirs would receive an inheritance if the will didn’t exist, so they have something to gain or lose from contesting the will.

According to ARS 14-210214-2103, the following family members may be considered legal heirs (listed in order of intestate succession):

  • Spouse
  • Children (by representation, extends to the decedent’s grandchildren, great-grandchildren, etc.)
  • Siblings (by representation, extends to the decedent’s nieces, nephews, etc.)
  • Parents (by representation, extends to the decedent’s biological step-siblings)
  • Grandparents (by representation, extends to the decedent’s aunts, uncles, cousins, etc.)

Note that a family member is only considered a legal heir if they actually stand to gain or lose something from contesting the will. For example, the decedent’s spouse and children always have first priority in intestacy proceedings, so they have standing. However, the decedent’s siblings would only have standing if the decedent didn’t have a spouse or children.

 

Grounds to contest a will

If you are an interested party with standing, you can’t just contest your parent’s will because you don’t like it. Successfully contesting a will means you have to prove that a portion or all of the will is invalid, and there are only a handful of circumstances that qualify as grounds to invalidate a will. Here are some of the more common reasons a will may be considered invalid:

  • Testamentary capacity – if the testator (the person writing the will) was mentally incapacitated when the will was drafted and signed, the will is invalid. Mental incapacitation is usually verified by a doctor or psychologist (ARS 14-2501).
  • Improperly signed – whether the will is handwritten or typed, the document needs to be signed by the testator (otherwise it’s just considered a draft). If the testator cannot physically sign the document, they can direct someone to sign on their behalf (ARS 14-2502).
  • Improperly witnessed – handwritten (holographic) wills do not need to be witnessed, but typed wills require signatures from two witnesses. Unless everyone signs in the presence of a notary public (creating a notarized self-proved will), the court will summon the witnesses to attest to the will’s validity.
  • Fraud – the most common instances of fraud involve a beneficiary who changes the will to increase their inheritance and/or disinherit other intended beneficiaries.
  • Undue influence – unfortunately, family members are usually the culprits behind undue influence when they pressure the testator to increase their inheritance by disinheriting other parties. Bribery, blackmail, and duress are usually present in these situations.
  • The will is not the most recent version – only the most recently signed and dated document qualifies as the decedent’s last will and testament. If someone produces a newer will that was intended to replace the old will, the older will is invalid.

 

Potential consequence of contesting a will

Many wills contain a “no-contest” clause that declares any beneficiary who contests the will stands to lose their entire inheritance. That said, Arizona law considers no-contest clauses to be unenforceable as long as the beneficiary contesting the will has probably cause (ARS 14-2517). Keep in mind, though, that if the court doesn’t find probably cause, the beneficiary contesting the will may lose their entire inheritance.

How to contest a will

You should always speak with an attorney before you contest a will. An experienced probate attorney can assess your case, determine if there is probably cause, advise you on your options, and represent you through the challenging process of contesting the will in court. Contesting a will is never easy, and it’s not something you’ll want to do on your own.

With your attorney, file a complaint with the court to contest provisions in the will or the document itself. Your complaint needs to clearly identify the grounds for invalidation and provide evidence of your claim. The court will schedule a hearing, and the estate’s personal representative (aka the executor) will defend the will against your allegations. Generally speaking, judges are inclined to follow the decedent’s wishes in their will, so they will be reluctant to invalidate the will unless you provide irrefutable evidence to back your claim. Again, you can’t just contest the will because you don’t like it—you need to prove fraud, undue influence, lack of testamentary capacity, or fundamental procedural flaws.

 

Statute of limitations on will contests

Valid will contests need to be submitted within two years of the testator’s death, or within one year of the estate’s closing, whichever comes first. If you need to contest the personal representative’s actions or appointment, you’ll have three years from the time of the testator’s death, unless the estate is properly closed, in which case you’ll only have six months from the date of closing. Complaints of improper distributions can be filed within one year of the distribution, or within three years of the decedent’s death if the distributions haven’t been made.

 

Results of successfully contesting a will

Depending on which portions of the will you are able to successfully contest, the judge will either invalidate those affected portions of the will, or they can invalidate the entire document if necessary. In either case, the assets that are addressed in the invalidated portions of the will become subject to the state’s intestacy laws and will proceed through probate as if the decedent didn’t address them in their will.

The only exception would be when there is another certified, valid copy of a former will (e.g. if the decedent wrote a will in 2010, then wrote another that superseded the first in 2018). This situation is preferable as it allows the court to do its best to honor the known intentions and wishes of the decedent.

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