Defending Against Will Contests: Proactive Strategies and Litigation Tactics

The Rising Tide of Will Contests

A contested probate routinely consumes $50,000 to $500,000 per side in legal fees and takes 1 to 3 years to resolve — and that's before you factor in the damage to family relationships. Will contests are the most financially consequential proceedings in probate, and practitioners plus judges consistently report the frequency climbing, driven by the aging Baby Boomer population, blended families with competing interests, unequal distributions, and the sheer magnitude of wealth in play.

No comprehensive national database tracks the filings, but the anecdotal evidence across state benches is unanimous. The stakes are high.

For the probate attorney, will contests present unique challenges. The burden of proof may shift depending on the ground of challenge and the jurisdiction.

The testator—the one person who could explain their intentions and mental state—is unavailable to testify. The evidence often consists of ambiguous medical records, conflicting family testimony, and the subjective impressions of witnesses who observed the testator months or years before death. Success in will contest defense requires both technical legal skill and the ability to construct a compelling narrative about the testator’s intentions and capabilities.

This article addresses will contests from both the planning perspective (how to reduce the risk of a successful challenge) and the litigation perspective (how to defend a will once a contest is filed). Whether you are drafting the will or defending it in court, the strategies discussed here will strengthen your practice. For a related discussion on resolving estate disputes through alternative methods, see our article on probate mediation and dispute resolution.

Pre-Mortem Strategies: Building a Contest-Proof Estate Plan

The best defense against a will contest begins years before the testator dies. Estate planning attorneys who anticipate the risk of a challenge—because of unequal distributions, disinherited children, a late-in-life marriage, or a testator with cognitive decline—can build a record that makes a successful contest exceedingly difficult. These pre-mortem strategies are among the most valuable services an estate planning attorney can provide, yet they are often overlooked in favor of purely transactional document preparation.

Video recording of the will execution ceremony is one of the most powerful tools available. While not required by any state statute, a video showing the testator articulating their understanding of their assets, their family members, and their dispositive wishes—and demonstrating their ability to answer questions from the supervising attorney—is devastating evidence against a claim of lack of testamentary capacity or undue influence.

The video should capture the testator reading or summarizing the key provisions of the will, explaining why they have made unequal distributions if applicable, and confirming that they are acting voluntarily. The supervising attorney should ask open-ended questions that test the testator’s recall and comprehension rather than leading questions that suggest the answers.

A physician’s capacity letter, obtained contemporaneously with the will execution, provides additional protection. The letter should be from the testator’s treating physician or, ideally, from a board-certified geriatric psychiatrist or neurologist who conducts a formal capacity evaluation. The evaluation should address the four elements of testamentary capacity recognized by the Restatement Third of Property: Wills and Other Donative Transfers: the ability to understand the nature and extent of one’s property, the natural objects of one’s bounty (i.e., family members and dependents), the nature of the testamentary act, and how these elements relate to form a coherent plan for disposition.

Standing Requirements and Grounds for Contest

Not everyone who is unhappy with a will has standing to contest it. Standing to challenge a will is generally limited to “interested persons”—those who would receive a larger share of the estate if the challenged will were invalidated. This typically includes heirs at law (those who would inherit under the intestacy statute if there were no will), beneficiaries named in a prior will, and, in some jurisdictions, creditors of the estate. A friend or distant relative who was not named in either the challenged will or a prior will and who is not an heir at law generally lacks standing.

The four traditional grounds for contesting a will are lack of testamentary capacity, undue influence, fraud, and improper execution. Lack of capacity requires the contestant to prove that the testator, at the time of execution, did not understand the nature and extent of their property, did not know the natural objects of their bounty, did not understand the nature of the testamentary act, or was unable to form a rational plan of disposition. The standard is lower than the capacity required for contracts or other legal acts—a person can have diminished cognitive function and still possess testamentary capacity.

Undue influence is the most frequently alleged and most difficult to prove ground for contest. It requires evidence that someone exerted influence over the testator that was so pervasive and controlling that it overcame the testator’s free will and caused them to make a disposition they would not otherwise have made.

Courts look for circumstantial evidence of a confidential relationship between the influencer and the testator, the influencer’s opportunity to exert influence, the testator’s susceptibility to influence, and actions by the influencer to procure the contested will. In several jurisdictions, including California (Probate Code §86), a presumption of undue influence arises when a beneficiary was in a fiduciary relationship with the testator and was active in procuring the will.

Burden of Proof and Presumptions by State

The allocation of the burden of proof in will contests varies by jurisdiction and by the ground of challenge. In most states, the proponent of the will (typically the personal representative or the named executor) bears the initial burden of proving due execution—that the will was signed by the testator in the presence of the required number of witnesses and that the formalities of execution were observed. Once due execution is established, the burden typically shifts to the contestant to prove their alleged ground of challenge by a preponderance of the evidence.

Some states create presumptions that can significantly affect the litigation dynamic. In Florida, for example, a will that is “self-proved” under Florida Statute §732.503 (i.e., accompanied by an affidavit of the witnesses made at the time of execution) is presumed valid, and the contestant bears the burden of overcoming this presumption.

In New York, once the proponent establishes due execution by the testimony of at least one attesting witness (or the self-proving affidavit), a presumption of capacity and freedom from undue influence arises. The contestant must then produce sufficient evidence to rebut the presumption and sustain their burden of proof.

Understanding these procedural nuances is essential for both proponents and contestants. As the proponent defending a will, your strategy should focus on establishing the presumption quickly and then demonstrating that the contestant’s evidence is insufficient to rebut it.

As the contestant, you must marshal enough evidence—typically through medical records, witness testimony, and expert opinions—to shift the burden back to the proponent and create a triable issue of fact. The ABA Litigation Section publishes resources on trial strategies in probate and trust litigation that are valuable for practitioners on either side.

Discovery and Evidence in Will Contest Litigation

Discovery in will contests is both broader and more sensitive than in typical civil litigation. The medical records of the testator are almost always relevant and discoverable, as they may shed light on cognitive capacity, susceptibility to influence, and the presence of conditions (dementia, delirium, depression, medication effects) that could impair testamentary capacity. The attorney-client privilege may also be at issue, as the “testamentary exception” recognized in many jurisdictions allows disclosure of communications between the testator and their estate planning attorney when those communications are relevant to the validity of the will.

Deposition testimony of the attesting witnesses, the drafting attorney, the testator’s physicians, family members, and caregivers forms the evidentiary backbone of most will contests. When deposing witnesses, focus on the testator’s cognitive state at the time of execution (not at other times), the testator’s awareness of their assets and family members, any statements the testator made about their dispositive wishes, and any interactions between the testator and the alleged influencer. Inconsistencies between deposition testimony and contemporaneous records (medical notes, financial statements, correspondence) are powerful impeachment tools.

Document discovery should target the testator’s financial records (to establish the nature and extent of the estate), prior wills and estate planning documents (to show a pattern of testamentary intent or, conversely, a sudden departure from prior plans), medical records (including prescription records that may reveal medications affecting cognition), and communications between the alleged influencer and the testator or the testator’s estate planning attorney. In today’s digital age, email and text message discovery is increasingly important—messages between family members during the testator’s final years can reveal animosity, manipulation, or coordinated efforts to influence the estate plan.

Expert Witnesses in Will Contests

Expert witnesses play a critical role in will contests, particularly on the issues of testamentary capacity and undue influence. The most common experts include medical experts (geriatric psychiatrists, neurologists, or neuropsychologists who opine on the testator’s cognitive capacity based on medical records, standardized assessments, and the timeline of cognitive decline), handwriting experts (forensic document examiners who analyze signatures on the will for authenticity, tremor patterns, or signs of guided hand), and forensic accountants (who trace financial transactions that may evidence exploitation or undue influence).

When retaining a medical expert to support a will’s validity, select a practitioner who has experience with testamentary capacity evaluations and understands the legal standard (which differs from the clinical standard for decision-making capacity). The expert should review the testator’s complete medical records, any cognitive assessments administered during the testator’s lifetime, the medication list at the time of execution, and the video and contemporaneous notes from the execution ceremony. A well-qualified expert who can explain to the court or jury why the testator met the legal standard for testamentary capacity—even in the presence of some cognitive decline—is often the most persuasive witness in the case.

For the contestant, the expert’s task is more challenging: they must establish, typically through retrospective analysis of medical records, that the testator lacked capacity or was unusually susceptible to influence at the specific time the will was executed. A diagnosis of Alzheimer’s disease or other progressive dementia does not, by itself, establish lack of capacity—the disease progresses at different rates in different individuals, and the testator may have had lucid intervals. The expert must tie the clinical evidence to the legal standard and to the specific date and time of execution. Resources from ACTEC provide guidance on working with experts in trust and estate litigation.

No-Contest Clauses: Enforceability and Strategy

In terrorem or no-contest clauses—provisions that purport to disinherit any beneficiary who challenges the will—are a common tool for discouraging will contests, but their enforceability varies dramatically by state. In Florida, no-contest clauses are unenforceable as a matter of public policy under Florida Statute §732.517.

In California, they are enforceable under Probate Code §21310–21315, but a “probable cause” exception protects contestants who have reasonable grounds for their challenge. Texas generally enforces no-contest clauses, as does New York under EPTL §3-3.5, though New York provides a safe harbor for certain types of preliminary examinations.

For the estate planning attorney, the decision to include a no-contest clause should be made with full awareness of its enforceability in the relevant jurisdiction. In states where the clause is enforceable, it creates a powerful deterrent: a beneficiary who receives a meaningful bequest under the will risks losing that bequest if they file a contest and fail.

This deterrent is most effective when the beneficiary’s bequest is large enough that the risk of forfeiture outweighs the potential gain from a successful contest. A $10,000 bequest to a disinherited child provides little deterrent; a $500,000 bequest creates a meaningful barrier to litigation.

For the litigation attorney defending against a contest where a no-contest clause is present, the clause is a powerful tactical weapon. Even in jurisdictions with a probable cause exception, the contestant must demonstrate at the outset that their challenge has a reasonable basis—a requirement that can narrow the scope of the contest and force early disclosure of the contestant’s evidence.

Conversely, if you represent the contestant, you must carefully evaluate whether the potential recovery justifies the risk of forfeiture and, in probable cause jurisdictions, whether you can demonstrate sufficient grounds to invoke the exception. For more on estate planning in blended families—where no-contest clauses are particularly relevant—see our article on blended family estate planning.

Settlement and Compromise in Will Contests

The vast majority of will contests settle before trial, and experienced practitioners know that settlement is often the best outcome for all parties. Will contest litigation is expensive (legal fees of $50,000–$500,000 per side are common in contested matters), time-consuming (cases frequently take 1–3 years to resolve), and emotionally devastating for families that must air private grievances in public proceedings. A negotiated settlement that gives each party some portion of what they seek—while preserving what remains of the family relationship—is frequently superior to a trial outcome, even for the party with the stronger legal position.

Settlement in will contests takes several forms. A family settlement agreement, where the parties agree to modify the distributions under the will, is the most common. In most jurisdictions, the court must approve the settlement, particularly if minor beneficiaries or incapacitated persons are affected. The settlement agreement should address the tax implications of any redistributed assets—a payment from one beneficiary to another may be treated as a gift for transfer tax purposes unless it is structured as a qualified disclaimer or as consideration for the release of a legitimate legal claim.

Mediation has become an increasingly popular and effective tool for resolving will contests. A skilled mediator with experience in estate and trust disputes can facilitate conversations that the parties are unable to have on their own, help each side assess the strengths and weaknesses of their position, and craft creative solutions that address the underlying family dynamics rather than just the legal issues.

Many probate courts now require or strongly encourage mediation before trial, and the settlement rates in mediated will contests are significantly higher than in direct negotiation. For more on mediation as a dispute resolution strategy, see our article on probate mediation and dispute resolution. For context on probate ethics when navigating these sensitive situations, see our discussion on ethics in probate practice.