Objecting to a Will in Louisiana

Grounds for Contesting a Will in Louisiana

When you contest or object to a will, you are saying that you don’t believe the will was legally executed according to Louisiana law. The three most common reasons for contesting a will include:

• The person making the will was under undue influence. The person making the will (the testator) must want to make the specific provisions contained in the will. If the testator was pressured or unduly influenced by someone else to create the will or to include a specific provision, the will may be contested on the grounds of undue influence.
• The will was not created in accordance with Louisiana law. Louisiana, like all states, has specific requirements about how to make a will. Whether the testator created a notarial will or an olographic will, the particular requirements must be met. For example, notarial wills must be written, signed, dated, and witnessed. Olographic wills must be handwritten. If a formal requirement for creating or executing a will was not met, you may have grounds for contesting the will. The burden is on you to prove that the will does not meet the legal requirements and should be set aside.
• The testator lacked the mental capacity to create a will. It is difficult to prove that a testator lacked the mental capacity to create a will. However, in some cases, it can be done successfully. Mental capacity, also referred to as testamentary capacity, means that the testator generally understands the nature and consequences of creating a will and the provisions of the will. You must prove by clear and convincing evidence that the testator lacked this capacity at the time the will was executed. Evidence may include medical records from around the time the testator created the will, lay witness testimony, and expert witness testimony.

Only people with an interest in the outcome of a succession case can formally contest a will in Louisiana. In other words, if you have: (1) a legal reason to challenge the validity of the will; and (2) the right to inherit property either through the will or Louisiana’s laws of intestacy, you may talk to a lawyer about contesting the will.

How to Contest a Will in Louisiana

After a succession case is opened, you can file an objection to the succession petition with the court. Your petition of objection should include:

• Your name and address
• Your interest in filing the opposition
• Your grounds for opposition
• A prayer for relief, indicating what resolution you are seeking

Once the court receives your petition of objection, the court will schedule a contradictory trial to hear your concerns, consider evidence, and rule on your objection.

Dealing with an estate after the death of a loved one is often emotional and complicated, particularly when you object to the validity of the will. Estate litigation may become necessary, and you need to be prepared to protect your rights.

Each year, our succession, probate, and estate lawyers represent hundreds of people throughout Louisiana. We know what issues to expect, what evidence to seek, what arguments to make, and the likely outcomes of your case. We will advise you of all of your legal options, so you can make an informed decision about what to do next.

Objecting to a Will vs. Contesting a Will: What’s the Difference?

Louisiana practitioners use these terms in related but distinct ways, and confusing them leads to procedural mistakes that can waive your rights:

• Contesting a will (nullity action) means challenging the validity of the will itself — arguing it should be declared a nullity because of formal defects, lack of testamentary capacity, undue influence, or fraud. A successful will contest means the will (or portions of it) is void, and the estate is distributed as if the will never existed. For the full guide to grounds and deadlines, see our article on challenging the validity of a Louisiana will.
• Objecting to probate is a narrower procedural challenge to the presentation of the will for probate. The grounds are typically procedural: the proponent hasn’t followed proper notice requirements, the document presented isn’t the original will, or jurisdictional requirements aren’t met. An objection to probate doesn’t necessarily attack the will’s substantive validity.
• Objecting to the succession representation means challenging a specific action taken by the succession representative (the executor or administrator) — for example, objecting to the inventory, an account rendered, or a proposed distribution. These objections are filed within the succession proceeding itself.

Understanding which type of challenge applies to your situation determines where and how you file, the applicable deadlines, and the outcome you can achieve. An attorney who handles succession litigation can identify the correct procedural path.

Grounds for Objecting to Probate of a Louisiana Will

When a will is presented for probate (offered to the court for recognition), any interested person can file an opposition. The recognized grounds for opposing probate in Louisiana include:

• Improper notice. Louisiana law requires that interested parties (heirs, legatees, creditors) receive proper notice of a succession proceeding. If notice was inadequate or omitted, a party may object to the proceedings until proper notice is given.
• Wrong court. Louisiana successions must be filed in the district court of the parish where the decedent was domiciled at death. A succession filed in the wrong parish is subject to objection on jurisdictional grounds.
• Failure to produce the original will. As a general rule, the court requires the original will for probate, not a copy. If only a copy exists, the proponent must explain what happened to the original and meet a higher evidentiary burden. A party may object if the proper showing is not made.
• Formal defects apparent on the face of the will. If a notarial testament lacks a notary’s signature, is missing required witnesses, or shows other formal defects on its face, an opposition can be filed on that basis.
• Forgery. If there is credible evidence that the signature or the document is not authentic, an opposition on forgery grounds may be filed.
• A later will exists. If a more recent valid will exists that revokes the one being offered for probate, the objecting party can present the later will and request it be probated instead.

How to File an Opposition to a Louisiana Will: The Procedure

Opposing the probate of a will in Louisiana is a formal legal proceeding — not something that can be done informally by contacting the court clerk or attending the succession hearing without papers filed. The basic steps are:

• Step 1 — Identify your standing. You must have a legally recognized interest in the outcome — typically, you would receive more property if the will being opposed is set aside or if a different will is probated. When a will is set aside, the estate distributes under Louisiana’s intestate succession rules. Family members who would inherit under intestate succession, or legatees under a competing will, typically have standing.
• Step 2 — File a Petition or Opposition in the succession court. An attorney prepares and files the formal opposition or petition for nullity in the district court where the succession is pending. This document states the legal grounds, the facts supporting them, and the relief requested.
• Step 3 — Serve all parties. The proponent of the will (typically the executor) and other interested parties must be served with a copy of the opposition. Proper service is essential; failure to serve can result in dismissal.
• Step 4 — Discovery and evidence gathering. If the opposition proceeds to a hearing, both sides may engage in discovery — obtaining medical records, deposing witnesses, reviewing financial records, and gathering handwriting expert opinions depending on the grounds.
• Step 5 — Hearing before the court. The court holds an evidentiary hearing (or trial) on the opposition. The burden of proof rests with the opposing party on most grounds. The judge (not a jury) decides whether the opposition is sustained.

Timing matters critically. Most objections must be made during the succession proceeding or within the applicable prescription period. Waiting until assets are distributed and the succession is closed makes relief far more difficult even if your legal grounds are valid. Consult a succession litigation attorney as soon as you believe a will may be defective or a proceeding may be irregular.

To get started, please contact our Louisiana succession lawyers today. We welcome your call or you can complete our contact form to have us contact you.