Will Contests: To File or Not to File? That is the Question

Mar 06, 2014

By Karolyn A. Hicks | Related Practices: Estate Planning & Administration and Trust & Estate Litigation

Many people assume they have a legal right to inherit from their parents and other close family members. They’re often surprised to learn that, in fact, they do not. With the exception of a spouse, you have no legal right to inherit property when a family member dies—even if it is a parent.  To be clear, if your parent dies without a will, you will inherit under intestacy laws.  However, intestacy laws do not apply if there is a valid will. So, let’s say your parent(s) have disinherited you. Should you file a will contest?

In answering that question, you will want to ask yourself at least the following questions:

  • On a daily/weekly basis, were the people/person who did inherit (the “beneficiaries”) closer to the decedent that me?
  • What was my relationship with the decedent? Were we close or had we fallen out?
  • Had the decedent given me significant gifts during his or her lifetime?
  • Did I have any discussions with the decedent about his or her estate plan?
  • How long before death did the decedent sign the will (days, weeks, years, decades)?
  • Do I know if I was named as a beneficiary in earlier wills?
  • Was/were the person/people named beneficiary/ies also in earlier wills?
  • Did my siblings/other family members inherit or were we all “disinherited” in favor of a non-family member?
  • How long was the current beneficiary(ies) in the decedent’s life?
  • What was the nature of his/her relationship with the decedent? (caregiver? new spouse? charity? church?)
  • Was there a large age difference between the decedent and the beneficiary (e.g., new, young spouse)?
  • Did the decedent have mental or physical impairments?
  • Did you ever accompany the decedent to a medical appointment? If so, what did the doctor say about his or her cognitive abilities?
  • Did the person/people who inherited try to isolate the decedent from his or her family members prior to death?
  • What does the beneficiary say about why he/she inherited instead of you?
  • What do disinterested third parties say about the decedent’s final estate plan?

While none of these questions are determinative, the answers may help you decide whether the decedent made a voluntary decision, free from the influence of others, to disinherit you.  If, after reviewing these questions, you believe the decedent did not freely and voluntarily sign this will and/or that he or she did not have the mental wherewithal to sign a new will, you should consult an attorney to discuss challenging the will. 

Keep in mind that there are very short time limits to contest a will so you must act quickly. In Washington, you have only four months from the date the will is admitted to probate to challenge it.  There are no exceptions. Courts strictly construe this four- month statute of limitation.  An attorney will likely need at least a month to fully analyze a case, decide whether or not to file the contest, and draft the appropriate pleadings. Do not wait until the four months are about to expire. Seek a consultation as soon as you find out about the will.  If one attorney declines to file the case, seek a second opinion.

Another consideration in making your decision is cost and attorneys’ fees.  Will contests are often put on a “fast track” to trial so costs will be very high, but for a shorter period of time than a general civil lawsuit.  Currently, King County sets will contests for trial 90 days after the initial hearing. If you do not already know, you should try to figure out the amount of the estate and what your inheritance would be if you successfully contested the will so that you can run a cost/benefit analysis.  Keep in mind that if you would inherit under the “intestacy” statutes (e.g., if your parent died) and there is only one will, you only need to defeat that will, but if there are several wills and you were named in one version a few years (or decades) ago, you have to defeat every will executed subsequent to the one that named you.  The more wills you have to defeat and the older they are, the higher the costs are likely to be because of the time frame that will need to be investigated. 

In your cost/benefit analysis, compare the size of the estate to the amount you would inherit if you are successful.  It is not uncommon to spend $100,000 challenging a will. It can be significantly higher if more is at stake and/or your opponent vigorously defends what appears to be the last will and testament of the decedent.  On occasion, lawyers will agree to take will contests on a contingency fee basis, which means they will take a percentage of your recovery only if they are successful at trial and/or you settle the dispute prior to trial.  If you do not settle and they lose at trial, you will not be responsible for the attorneys’ fees. Consult with an attorney to determine the best approach for you.