Will Contest

A will is a document that leaves instructions as to how the testator’s property is to be disposed of upon their death. When executed as required by Vermont law, a will is a legally enforceable document. A fundamental part of the settling a decedent’s estate is validating the will. If questions are raised as to whether the will is indeed a reflection of the wishes of the testator, those questions must be settled before the will can be probated. An action in court to settle questions about the validity of a will is a type pf probate litigation called a will contest.

Who Can Contest It Will

In order to contest a will, the objectant must be an “interested party.” An interested party is someone who will be immediately financially impacted if the will is invalidated. For example, a beneficiary of the proffered will would be an interested party because if the will is invalidated, they may no longer be entitled to receive a testamentary gift.

Other interested parties include beneficiaries named in a prior will and the decedent’s intestate heirs. To initiate a will contest, the objectant must file an objection to probate in the same court that accepted the will.

Grounds for Contesting a Will

In addition to having standing, to contest a will the objectant must also have a legal basis for challenging the validity of the will.

  • Incompetent testator. One of the requirements for making a valid will is that the testator must be mentally competent at the time that they executed the will. This is described as the testator being of “sound mind.” 14 V.S.A. § 1. In the case of In re Estate of Burt, 122 Vt. 260, 263 (1961), the court explained that to be competent, at the time they executed the will the testator must have been able to remember “who were the natural objects of his bounty, recall to mind his property, and dispose of it understandingly according to some plan formed in his mind.”
  • Improper execution. To be valid in Vermont, the will must in writing, and it must be signed by the testator. It must also be signed by at least 2 credible witnesses. 14 V.S.A. § 5. If any of these formalities is absent, there would be grounds for a will challenge.
  • Undue influence. If the testator had been subjected to illegal influence that resulted in them making a will that they would not have otherwise made, the will would not be valid. In the case of In re Estate of Rotax, 139 Vt. 390 (1981) the court describes undue influence as follows: “a testator’s free will is destroyed and, as a result, the testator does something contrary to his ‘true’ desires.”

Consequences of a Will Contest

If a will contest is successful, the court will revoke probate and move forward as if that particular will did not exist. If another will is produced that is indeed valid, then the court will probate that will. Otherwise the decedent would be intestate and the court would distribute estate assets based on the Vermont’s law of intestate succession. 14 V.S.A. § 301 et seq.

Under intestate succession laws, the surviving spouse will receive 100% of the decedent’s estate if the decedent does not have children or all of the children are also the children of the surviving spouse. If the decedent has at least one child who is not the child of the surviving spouse, then the surviving spouse will receive 50% of the estate and the other 50% will go to the children who are not also the surviving spouse’s children. 14 V.S.A. § 314.

If the decedent has no surviving spouse or children, the estate will go to the surviving parents, then to the surviving siblings, then to surviving grandparents, and then to the closest next of kin. To inherit, a claimant may be required to prove relatedness.

Note that to inherit, the person must survive the decedent by at least 120 hours. 14 V.S.A. § 337. If the decedent has no next of kin, their estate will go to the state of Vermont.

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