Before asking your attorney to contest a will in Virginia, you should learn the basics of the legal grounds to contest a will, as sometimes laws vary from state-to-state. Not everyone can contest a will in Virginia, as only those who qualify can have grounds to contest.
Only “Interested Persons” May Contest a Will in Virginia
First, you must have the status of an “interested person.” General curiosity does not give anyone this status. Interested persons typically must meet at least one of these guidelines.
* Someone entitled to receive proceeds or assets under the terms of the will.
* Persons with a “statutory right” to a portion of the estate, including spouses and others entitled to property under Virginia laws should the will be invalidated.
The term “person interested” means that an individual must have a legally ascertainable, pecuniary interest, which will be impaired by probating a will or benefited by setting aside the will, and not a mere expectancy. Martone v. Martone, 257 Va. 199 (1999)
Even if you are related to the grantor (the deceased), you are not automatically classified as an interested person. You have to establish that you fall into one of the noted categories. However, if you are present when the will is probated, you may create the ability to challenge the legitimacy of the document.
Establishing Grounds for a Will Challenge in Virginia
Should you qualify as an interested person, you must still identify grounds that make your challenge legal. For example, if the testator’s will leaves you nothing, you won’t like the language of the will. However, these are not legal grounds to challenge its authenticity.
You and your attorney must follow the provisions of the Virginia Estate Law to file a permissible challenge to the validity of a will. Virginia Code § 64.2-448, lays out the timeline for an interested person to file a challenge to the will.
Common Grounds for Will Challenges in Virginia
You must have generally accepted grounds to contest a will. These common reasons for a challenge have been recognized for many years, but must be proven to the court to be successful in overturning or invalidating a last will and testament.
* The decedent’s mental state when making the will was deficient.
* The decedent did not follow all “formalities,” as prescribed by Virginia law, when executing the will.
* The decedent was subjected to undue influence, duress or the fraud of another party when creating the contents and distributions of the will.
Should you fail to establish yourself as an interested person or fail to have evidence of a “recognized reason” for contesting a Virginia will, your attorney cannot file a successful challenge in court.
Note that spouse who are Virginia residents cannot be completely eliminated from your will. Spouses have statutory rights to one-third of your estate if you have children and one-half of your estate if you have no surviving children at the time of your demise. Surviving spouses need not issue formal challenges to wills, but must file timely claims.
Ryan C. Young | Estate Litigation | Probate | Richmond, Virginia