Can a Will be Contested After Probate?
When you learn that you were left out of a will, or that your inheritance is a smaller portion of the estate than you anticipated, or you believe the will is invalid for other reasons, you may wonder if it is possible to challenge the probated will. Contesting a will after probate can be an emotional roller-coaster and it may affect your rights under the will you challenge. The first question to answer is can a will be contested by you. Contesting a will after probate is restricted to certain “interested persons.”
What are the Grounds for Contesting a Will After Probate?
Before challenging a will, you must have standing and a legal reason for contesting the will after probate.
Only an interested person has standing. An interested person is someone whose rights may be materially affected if the estate is distributed based on the current will but may also include creditors who should have been but weren’t notified before the will was probated, including state agencies that are entitled to compensation for benefits paid to the deceased during their lifetime.
Specifically, this includes anyone who would be an heir under intestate laws such as a spouse and children as well as devisees under a prior will (someone who was being given real estate) and those named in the current will.
Circumstances that support contesting a will after probate include:
- A new will is discovered with a later date. If a will with a later date is discovered, it should be submitted to probate.
- At the time the will was written, the deceased lacked the legal capacity to write a will due to cognitive impairments such as dementia. Adults generally have the capacity to contract, including writing a will, as soon as they become adults.Exceptions to this include times when the person is impaired by drugs, alcohol, illness, or disease. If the mental capacity of an individual is impaired, they may lack the ability to understand the ramifications of their actions. A will made after mental capacity has diminished due to dementia or the side effects of medication can be successfully challenged.
- Undue influence was exerted when someone, such as a caregiver, led the decedent to leave assets to the person with influence. In some cases, family and friends flock around an elderly person and can take advantage of their situation. Individuals whose ability to care for themselves as they age are vulnerable to undue influence. They may be lonely and feel grateful to those who seek to take advantage of them by influencing them to change their will to favor them.
- Undue influence claims can be made for fraud, duress, or coercion. The root of an undue influence claim is that the will reflects someone else’s wishes and not those of the decedent before they were unduly influenced.
- If the signatures on the will are forgeries, the will can be contested. Although it is primarily the decedent’s signature that is of concern, witness signatures can also be forged.
The time limit for challenging a will after probate is three months unless a later will discover.
What are the Risks of contesting a will after probate?
Beneficiaries who challenge a will risk receiving nothing, or a reduced inheritance if there is a no-contest clause in the will. A no-contest clause typically disinherits anyone who challenges the will. However, if the beneficiary is acting in good faith with evidence that a reasonable person would conclude should lead to contesting the validity of the will, the beneficiary’s share won’t be adversely affected.
Also, if the court action is to enforce their rights under the will or against an Executor who is not administering the estate in good faith, the beneficiary’s rights aren’t at risk under the no-contest clause.
If the challenge is successful, the probate court may disregard parts of the will that were challenged or use an earlier will. If an earlier will was not made, the estate will be settled as if the decedent died without a will.
Generally, once a court has adjudicated a matter, the concept of res judicata prevails. Res judicata gives the decisions of a court finality. Once the 3-month timeframe has elapsed following probate, the will cannot be challenged. However, NRS 137.130 allows a new will that was made at a later time to be admitted to probate if it is discovered.
Contesting a will is an emotional and stressful decision. Can a will be contested is a decision best made with the assistance of a Las Vegas probate lawyer. Contesting the will can be expensive and will usually not be cost-effective for small estates. The no-contest clause may cause you to lose any inheritance you’re eligible for under the existing will.
Of course, if you’re acting in good faith, which is something your attorney can advise you about, the no-contest clause won’t diminish your inheritance. You should also consider potential conflicts the contest will cause in the family before you decide to contest a will.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.