Challenging A Will A.K.A. Will Contest

By: Colby M. Lessmann | August 2021 | Wills, Trusts & Estate Planning | Probate

Did you recently have a parent or other relative pass away and were surprised to learn you were disinherited in the Last Will & Testament? If so, there are many things to consider before making the decision to challenge a Will. Photo of Estate Planning | Probate | Will Contest

Read the Last Will & Testament: You want to read the Will very carefully!! Does the Will contain a “no contest provision?” For example, if a person contests the Will, then they only receive $1.00.

Timeliness of the Will Contest: Has the Will already been admitted to probate in the State of Iowa? If so, you need to pay particular attention to when the Notice to Creditors was published in the local newspaper, as well as when you received the Notice in the mail from the Executor of the Estate. Pursuant to Iowa Code §633.304, an action to set aside or contest the Last Will & Testament of the Decedent must be brought within four (4) months of the date of second publication of the Notice to Creditors or one (1) month from the date of mailing of the Notice to Creditors, or you are forever barred from contesting the Will.

Grounds for Challenging a Last Will & Testament: It is not enough to set aside or contest a Will because a person thinks it is unfair. Rather, there are certain grounds which must be timely raised by the claimant, and the claimant has the burden of proving those contestable grounds exist. Those grounds are as follows:

  1. Lack of Testamentary Capacity: The law presumes a person has the mental ability to make a Will & Testament. A person has the mental ability to make a Will if he/she:
    • Knows a Will is being made;
    • Knows the kind and extent of his/her property;
    • Is able to identify and remember those persons he/she would naturally give his/her property to; and
    • Knows how he/she wants to distribute his/her property.
  2. Undue Influence: The law presumes a person was free from undue influence when making a Will. To overcome this burden, the claimant must show the following:
    • At the time the Will was made, the Testator was susceptible to undue influence.
    • The “bad guy” had the opportunity to exercise such influence and carry out the wrongful purpose.
    • The “bad guy” was inclined to influence Testator unduly for the purpose of getting an improper favor.
    • The result was clearly brought about by undue influence.

    To set aside the Will, the claimant must provide all four (4) elements. In situations of undue influence, the “bad guy” has substituted his/her intentions for those of the person making the Will. As a result, the Will expresses the purpose and intent of the “bad guy” exercising the influence and not those of the maker of the Will. Undue influence must be present at the very time the Will was signed and must be the controlling factor in the Will preparation and execution.
    In deciding if there was undue influence, you may consider the following:

    • Dominance over the maker of the Will.
    • Whether the condition of the maker’s mind was subject to such dominance.
    • Whether the distribution of the maker’s property is unnatural, unjust, or unreasonable.
    • The activity of the person charged with exercising the undue influence and whether the person had the opportunity and frame of mind to exercise undue influence. Activities may include suggestion, request, and persuasion short of controlling the Will of the maker, but they do not alone constitute undue influence. Consider such activities along with any other evidence of undue influence.
    • The intelligence or lack of intelligence of the maker of the Will.
    • Whether the maker of the Will was physically or mentally weak.
    • Whether the person charged with exercising undue influence was the controlling party in a confidential relationship with the maker of the Will.
  3. Fraud: The Testator was deceived as to what he/she was actually signing or the terms that were supposed to be in the Testator’s Will. While this ground is extremely unlikely in a situation where an attorney prepared and executed the Last Will & Testament with the Decedent, it could be more likely if the Testator signed a “homemade” Will that was prepared by a non-lawyer or by the person who benefited within the Will.
  4. Forgery: The Testator did not actually sign the Last Will & Testament (his/her signature was forged). While this ground is also extremely unlikely in a situation where an attorney prepared and executed the Last Will & Testament with the Decedent, it could be more likely if the Testator signed a “homemade” Will that was prepared by a non-lawyer or by the person who benefited within the Will.
  5. Failure to Follow Will Execution Formalities: There are specific formalities which must be followed for a Last Will & Testament to be a valid Will under Iowa Code (such as having two witnesses for Testator signing the document). Failure to follow the technical requirements for a valid Will can result in the Will being found invalid/void.

DO I NEED TO HIRE AN ATTORNEY OR CAN I USE THE SAME PROBATE ATTORNEY?

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The short answer is: “Yes” and “No.” A challenge or contest to a Last Will & Testament tends to be very fact-specific and varies greatly with the circumstances surrounding each Decedent and the preparation of their Will. If the lawyer who is representing the Executor of the Estate is also the attorney who drafted the Last Will & Testament of the Decedent, then another attorney will need to be retained by the Executor of the Estate to handle the will contest, because the drafting attorney may have to be called as a witness; and therefore, it would be a conflict to represent you in the will contest.

If you have concerns about the validity of the Last Will & Testament of a loved one, the first thing to remember is DO NOT WAIT TO TALK TO A LAWYER. Time is of the essence in a will contest matter. If you do not file your contest within the four-month window, you may be forever barred from challenging the Will.

The attorneys of Tigges, Bottaro & Lessmann, LLP law firm are licensed in the states of Iowa, South Dakota, and Nebraska and practice primarily in the following communities and areas: Woodbury County: Sioux City, Sergeant Bluff, Lawton, Bronson, Salix, Moville, Sloan, Danbury, Correctionville, Anthon, Pierson, Hornick, Smithland, Cushing, and Luton; Plymouth County: Le Mars, Akron, Hinton, Merrill, Struble, Brunsville, Kingsley, Oyens, Westfield, Craig, and Remsen; Sioux County: Rock Valley, Hospers, Maurice, Chatsworth, Orange City, Hull, Alton, Granville, Hawarden, Ireton, Boyden, and Matlock; Monona County: Onawa, Whiting, Mapleton, Soldier, and Blencoe; Dickinson County: Spirit Lake, Okoboji, and Milford; Ida County: Ida Grove, Battle Creek, Holstein, and Galva; Crawford County: Denison; O’Brien County: Primghar, Sutherland; Clay County: Spencer; Cherokee County: Cherokee, Marcus, Quimby; Buena Vista County: Storm Lake, Sioux Rapids; Sac County: Sac City, Odebolt, Early; Carroll County: Carroll; Polk County: Des Moines, Ankeny, Grimes, Johnston; Union County: Dakota Dunes, North Sioux City, Elk Point, McCook Lake, Clay County: Vermillion, Yankton County: Yankton, Dakota County: South Sioux City, Dakota City, Dixon County: Dixon, Ponca, Wakefield; Douglas County: Omaha.

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