Grounds for contesting a will

Some of the most common grounds for contesting a will, what each one is really about, and why disagreeing with the outcome is not one of them.

A will is not challenged because it is unfair. It is challenged because something was wrong with how it came about or how it was made.

The categories below are some of the most common grounds recognized across US jurisdictions, though the precise test and who may bring a claim differ by state.

Source: Cornell Law School Legal Information Institute, Wex, "will contest"

That's a question about grounds, meaning what has to be wrong with a will. A separate, earlier question is whether you're allowed to raise it at all. Who has standing to contest a will? covers what counts as an interested person, and why the test differs by state.

This is general information rather than legal advice, and it is not a checklist for assessing your own situation.

Ground	What it's about	Typical evidence
Undue influence	Pressure that replaces the will-maker's own wishes with someone else's	Isolation, controlled access, sudden late-life changes
Lack of testamentary capacity	Whether the will-maker had the mental capacity the law requires at the moment of signing	Medical records from around the signing date, expert evidence
Improper execution	Whether the document was signed and witnessed the way the law requires	The document and witness accounts; formalities differ by state
Fraud and forgery	A document procured by deception, or a signature that is not genuine	Evidence of deception (fraud); handwriting analysis (forgery)
Revocation and later documents	Whether the will being administered is actually the operative one	Where documents were kept and who had access to them

Disagreeing with the outcome is not a ground. See "What is not a ground" below.

Undue influence

The argument that someone applied pressure to the person making the will such that the document reflects that person's wishes rather than the will-maker's own.

Source: Cornell Law School Legal Information Institute, Wex, "undue influence"

It is rarely about a single dramatic event. It is usually about a pattern: isolation from family, a new person controlling access and communication, sudden changes late in life, and a beneficiary who arranged the lawyer. Because it is a pattern, evidence tends to be circumstantial and drawn from many sources.

Proving undue influence: real case examples walks through what that pattern looks like in practice, fact by fact, and what a court will and won't accept in place of direct proof.

Lack of testamentary capacity

The argument that the person did not have the mental capacity required to make a will at the time they made it.

Source: Cornell Law School Legal Information Institute, Wex, "testamentary capacity"

Capacity is assessed at the moment of signing rather than generally, which is why someone with a diagnosis of dementia may still have made a valid will, and why medical records around the signing date matter so much. This is the ground most likely to require expert medical evidence, and therefore the most expensive to run.

Improper execution

The argument that the document was not signed and witnessed in the way the law requires. Formalities differ by state and cover things like the number of witnesses required and whether a beneficiary may act as one.

Florida's execution statute, for example, requires the testator's signing, or their acknowledgment of a signature already made, to happen in the presence of at least two attesting witnesses. Those witnesses must sign the will in the presence of the testator and in the presence of each other.

Source: Fla. Stat. §732.502, Execution of wills

A Florida will or codicil, or any part of either, is not invalid because it is signed by an interested witness, for example a beneficiary.

Source: Fla. Stat. §732.504, Who may witness

This is the most technical ground and often the most clear-cut: either the formalities were met or they were not. It is also the ground most likely to be resolved without a trial once the facts are established.

Will execution and court rules: Florida vs. Texas compares how two states set witness requirements, as one example of how formalities differ state to state.

Fraud and forgery

Forgery is the narrower allegation that a signature is not genuine, a species of the broader crime of creating or altering a legal instrument with intent to defraud.

Source: Cornell Law School Legal Information Institute, Wex, "forgery"

Fraud is the broader allegation: a document procured by deception, including a will-maker being misled about what they were signing. Both are serious allegations with correspondingly demanding evidential requirements, and forgery in particular usually turns on expert handwriting analysis.

Revocation and later documents

The argument that the will being administered is not the operative one, because it was revoked or because a later valid document exists.

Florida's revocation statute, for example, lets a subsequent inconsistent will or codicil revoke an earlier one, even without an express revocation clause, but only so far as the two are inconsistent. It also lets a will be revoked, in whole or in part, by a separate writing executed with the same formalities required for a will and declaring the revocation.

Source: Fla. Stat. §732.505, Revocation by writing

These disputes frequently turn on where documents were kept and who had access to them.

What is not a ground

This distinction matters, because it is where most enquiries begin and end. Whether the facts of a particular situation fall into one of the categories above is a question for a lawyer admitted in the relevant state. How to choose a probate litigator covers what to ask at a first consultation, including how to find out whether the facts support one of these grounds.

For a quicker way through the categories above, do I have grounds to contest a will? walks through a few general signals and points to which might be worth raising with a lawyer.

None of the following, on its own, is a ground:

• That the distribution is unfair, or unequal between children.
• That the will-maker changed their mind about you.
• That you cared for them and someone else received more.
• That you were promised something verbally, though that may raise separate claims outside a will contest.