Should I Enter Will Litigation? Here Are 6 Questions To Ask Yourself First

Article written by Attorney Kevin O'Flaherty
Updated on
September 21, 2020

In this article, we will discuss some potential conflicts that arise in will litigation in Iowa and how to decide if contesting a will is the right move. We will answer the following questions:


  • Do I have the legal standing to dispute a will?
  • Do I have the evidence to back up my claim?
  • Are there statutes barring me from contesting a will?
  • Is contesting a will something I can do without legal help?
  • Will I lose my inheritance if I challenge a will?
  • Can I afford will challenge litigation?


Will contests can be a very personal endeavor for all parties involved. Often, the party contesting the will is a beneficiary who received less than he or she expected or was written out of the will entirely. Even when a third party contests a will, such as a creditor, the process can be exhausting, expensive, and emotionally taxing for the family of the decedent. Hence the reason that many family members don’t bother contesting a will they believe is unfair or possibly fraudulent. The financial benefit, if there is one, rarely overcomes the potential emotional toll. But in some cases, and for some individuals, will litigation is the only option. But before you take that leap, ask yourself if you even have a case. And unless you have significant experience in will disputes and litigation, you’re going to need some help from an attorney.


Do I Have The Legal Standing To Dispute a Will?


Before any others, the first question you should ask yourself is if you can legally challenge the will. If you can’t, then the courts will simply dismiss your contest via summary judgment, citing no standing. But how do you know if you have standing? The primary factor is your relationship to the will and to a similar extent your relationship to the testator (the person for whom the will was created). Iowa Probate Code states that upon receipt of probate notice or after discovering the probate proceedings in a notice posted in the community, an interested party that has a personal, specific, and legal interest in the litigation, and can be injuriously affected, has the legal standing to contest a will.


A shortlist of those that would likely have the standing to contest a will includes: any individual named in the current or previous iteration of the will, testate and intestate heirs, third-party beneficiaries, creditors, fiduciaries, the decedent’s spouse, relatives, children, etc.


Do I Have The Evidence To Back Up My Claim?


So you’ve established that you have legal standing to bring a will dispute, but what about the evidence to back up your claim? Below are the broad categories into which the majority of will dispute claims will fall and the evidence you will need:


  • Undue Influence: Can you prove that someone influenced the testator, whether through coercion, intimidation, duress, etc, into drafting and signing this version of the will?
  • Fiduciary Issues: Did the fiduciary in charge of the decedent’s will and estate probate commit some form of negligence or other action that harmed your expected inheritance?
  • Testamentary Capacity: When the will was created, was the testator of sound mind?
  • Improper Execution: Did the decedent fail to legally execute the will: A missing signature, improper format, no witnesses, etc.
  • Fraud: Was fraud involved in the execution of the will? For example, do you have evidence that another person tricked the decedent into drafting the current version of the will, or that the will was actually created without the input of the decedent and then signed illegally?
  • Inequitable Will: This section is probably the most open for interpretation as it basically asserts the claim that the will is “unfair.” 


Being dissatisfied with your inheritance is rarely a strong enough argument to win a will contest. But if you feel that there is a significant issue with the will, your probate attorney can help validate your claim. 


Are There Statutes Barring Me From Contesting The Will?


The statute of limitations on will contests in Iowa preclude an individual from bringing a will contest 120 days after the second public notice of the estate probate, or 30 days after receiving an official notice of probate in the mail.


A will cannot be contested before it has entered probate, but if you feel that the testator is not of sound mind and you are concerned about fraud, under influence, etc, you can ask the court to assign a conservator.


Is Contesting A Will Something I Can Do Without Help?


The process of contesting a will has a lot of moving parts, each with its own research, deadline, and legal requirements. When contesting a will expect to file a caveat objection and petition to halt the probate process, serving the interested parties with written notice of the objection, going through the discovery process, working through pre-trial motions, taking part in dispute resolution and mediation, and possibly going to trial. Needless to say, you will likely need an attorney.


Will I Lose My Inheritance If I Challenge The Will?


It depends on the language of the will. If you are challenging a will that has a “no-contest clause,” then you are almost guaranteed to lose any right or interest in the estate if your evidence is not strong enough to justify your claim or it is found that you made the objection in bad faith. 


Can I Afford Will Challenge Litigation?

The overall process to challenge a will can take anywhere from 1 to 3 years; maybe less if summary judgment or some other motion is entered. The challenging party must pay her own legal fees and possibly the other party’s legal fees and court costs if the challenge is found to be in bad faith. 


If you have questions about will litigation and challenging a will, please give us a call.


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