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Posted by Fred Simon | Aug 27, 2022 | 0 Comments

Despite the familiar depiction of a will contest on television and in movies, a court proceeding to challenge the validity of a Last Will and Testament is quite different. These cases are typically filed by a beneficiary or potential heir to nullify the will with the result of having an alternate distribution of the estate assets. Contrary to popular belief, will contests are not decided when an instrument is offered for admission to probate. They are a separate lawsuit altogether, filed in a different court with a presiding judge who was not previously involved in the probate action.

Who can File a Will Contest in Kentucky and How Often does it Happen?

Anyone who stands to gain financially from the invalidation of a will can file a will contest action. Normally, the plaintiff is either named in the instrument or is a person who stands to inherit if the will is thrown out. If the case is successful, those inheriting under the will are replaced by only the relatives entitled to inherit under Kentucky law as if a will never existed. It is important to recognize that will contests can be very expensive, often relying on the testimony of medical experts when the mental state of the decedent is at issue. Consequently, will contests are typically filed only when large amounts of money are involved.

When is a Will Contest filed in Kentucky?

As stated above, will contest trials are not held in District Court where the will is admitted to probate. If someone disagrees with the disposition of assets as provided in the will (for reasons to be explained below), a will contest case must be filed in Circuit Court not later than two (2) years after a will is probated. Typically, the person filing the petition will also seek an order prohibiting the personal representative appointed for the estate from distributing assets until after the will contest proceeding is concluded.

What are the Grounds for filing a Will Contest in Kentucky?

Surprisingly, there a relatively few reasons upon which a will contest may be filed. It could be alleged that the person making the will (called the testator) wasn't old enough (18) or that he lacked the mental capacity to make a will and/or was not of sound mind. If someone believes that the testator was pressured into making a will, a claim of undue influence or duress might be made. Similarly, lack of testamentary intent could be alleged if a probated instrument is a writing prepared by the testator and is otherwise vague in setting forth the provisions. Also, if the formalities required by Kentucky law to constitute a valid will are lacking or the manner in which the document was signed is defective, a will contest may be brought on these grounds. While these reasons are not exclusive (i.e., other cases based on fraud, ambiguity, mistake, and that a will has been revoked), they do represent the most common grounds.

Can a Kentucky Will Contest be filed because Someone was Omitted?

It is a common misconception that if a person is omitted (or does not receive a token sum such as one dollar) from a will, that person may contest the will. However, this idea is not supported by the law. Court decisions have repeatedly held that being left out of, or not mentioned in a will is not sufficient grounds alone to challenge its validity. On the other hand, if one of the defects mentioned in the previous paragraph (i.e., undue influence or duress) should also be claimed to cause one to be disinherited, then sufficient grounds may exist to allow the contest to be heard.

What is a No-Contest or Anti-Contest Clause?

On occasion it is not surprising to find a will which states that anyone who challenges the probate of the will or any of its terms will lose his or her share (and be treated as if that person predeceased the testator). These disinheriting provisions are usually upheld in Kentucky, but the particular language used is examined carefully to allow the court to decide the true intent of the will maker.   

It is always wise to consult with an experienced attorney on whether a will contest is warranted. And since challenging a will requires a separate lawsuit to be filed in Circuit Court and invokes the need to understand court rules and procedures (instead of just filing forms), retaining a lawyer is a must. Fred Simon Law is ready to discuss your options on will contests.

About the Author

Fred Simon

Experienced Attorney Working Directly With You When working with some law firms, you may think that you are working with an experienced lawyer. In truth, your case may have been given to an associate attorney. This can result in receiving legal advice from an individual who has practiced law wit...


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