Probate

The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.

Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the RULE AGAINST PERPETUITIES, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.

Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of ESCHEAT, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.

A personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid.

Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate.

There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests.