If The Will Has A "No-Contest" Clause

Sometimes, to avoid family strife, a testator might include a provision in their will providing that anyone who contests it will be disinherited.  Virginia law makes clear that those sorts of "no-contest" clauses are enforceable, provided they clearly express the testator's intent to disinherit the contesting beneficiary under the particular circumstances.  If filing a will contest suit will cause you to be disinherited, you probably do not want to do it.  However, if you believe legitimate grounds exist to contest a will, and the will has a no-contest clause, you should consult an attorney who can help you understand your rights and the risk you might be taking by filing a lawsuit to contest it.

If The Will Has A "Self-Proving Affidavit"

Finally, most wills that are prepared by attorneys include a "self-proving affidavit" in which the testator and two witnesses swear that the testator's will is his last will and testament, that he signed it willingly and voluntarilily, that he was over the age of 18, and that he was of sound mind.  When a will includes a self-proving affidavit, it may be probated without the need for any witness testimony.  Additionally, if a will is self-proved, a presumption arises that the testator had the mental capacity necessary to sign it.  However, that presumption is rebuttable.  To overcome it in a will contest suit, the party challenging the will must produce evidence that the testator lacked mental capacity.  Therefore, it may be harder to contest a will that contains a self-proving affidavit.  But it is certainly not impossible.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.