A last will and testament is a document that is designed to represent the wishes of someone who has passed away. It is a legally enforceable document that leaves directions as to how a decedent’s estate is to be distributed. In order to ensure that the decedent’s wishes are fulfilled, it is critical that only a legitimate will is probated. If there are questions as to whether a will is indeed valid, then the law allows those objections to be litigated in a will contest. If the judge finds that the will is not valid, it will not probate it. Or. Rev. Stat. § § 113.075.
Who Can Contest It Will
Under Oregon law only interested parties have standing to file an objection to a will. Interested parties are generally limited to beneficiaries of the submitted will, beneficiaries of a prior or later will, and the decedent’s intestate heirs, as they are the only people whose financial position will be impacted if the will is invalidated.
Procedure for Contesting a Will
To initiate a will contest, the objectant must file a petition in the probate proceedings. The petition must be filed before the later of 4 months after the delivery or mailing of the notice to interested parties or 4 months after the first publication of the notice to interested parties. Or. Rev. Stat. § § 113.075(3)
Grounds for Contesting a Will
In addition to having standing, the objectant must have a good reason to contest the will. It is not enough that the contestant is angry that they were disinherited or has a “feeling” that it is fraudulent. The contestant must allege legally sufficient grounds for the challenge, such as:
- Will is ineffective. The will would be ineffective if the testator was mentally incompetent at the time they executed the will or was subject to duress or undue influence. If the will was not properly executed, it would not be effective. Furthermore, if the will is fraudulent, it would be invalid. Or. Rev. Stat. § § 113.075(1)(a)
- Later valid will. If the will submitted for probate is not the most recent will executed by the decedent, it would not be valid. A later will that was properly executed revokes the prior will. Or. Rev. Stat. § § 113.075(1)(b)
- Agreement to revoke will. If there is evidence that the testator made an agreement to revoke the will, there would be grounds to contest that will. Or. Rev. Stat. § § 113.075(1)(c)
Consequences of a Will Contest
The outcome of a will contest will determine the direction of the probate proceeding. If the will is upheld, then nothing changes. The process will move forward and the estate will be settled based on the terms of the will. If the will is invalidated, the court and there is another will that is determined to be valid, the court will use it as the basis of the settling the estate. Otherwise the estate will be intestate and Oregon’s intestate succession laws will apply. Or. Rev. Stat. §§ 112.035 and 112.045. Under the law, the decedent’s property will go to specific relatives based on how closely they are related to the decedent. Friends and entities will not be eligible to inherit in the absence of a valid will providing for them.
In Terrorem Clause
An “in terrorem clause” is a term in a will designed to prevent will contests. If a beneficiary initiates a will contest and is unsuccessful, an in terrorem clause would state that the beneficiary would forfeit their right to inherit, or that their inheritance would be diminished. Whether such clauses are enforceable depends on state law. In Oregon in terrorem clauses are valid and enforceable even if the objectant has probable cause. The exceptions to this general rule are where:
- The objectant has probable cause to believe that the will is a forgery
- The will has been revoked
- The will is invalid
Or. Rev. Stat. §§ 112.272