Delaware Will Contest Rules

Delaware splits a will challenge at one moment: the entry of the order of probate. Before that order, an objection is a caveat under 12 Del. C. § 1308, and the Court of Chancery receives it at any time until the order is entered. After that order, the remedy is a petition for review under 12 Del. C. § 1309(a), available for 6 months and open only to a person interested who neither appeared nor was served.

That line decides most Delaware cases before anyone argues about the will. A caveat has no deadline at all while it is still early, and the review that replaces it carries both a clock and an eligibility test. Miss the first and you may still have the second. Fail the eligibility test and the six months never belonged to you.

Every rule below was read in the official Delaware Code published by the Delaware Code Revisors on 2026-09-10, section by section, and each one is cited where it appears. The procedural routing was read in the Court of Chancery Rules published by the Delaware State Courts on the same day.

This page describes the mechanism. It is general information about Delaware law, not advice about a particular estate, and it does not say whether an objection fits your family. A licensed Delaware attorney is the person who answers that, and a contest is one of the few probate matters where an early conversation changes the options. If the case has not opened yet, the Delaware probate process walks through the proceeding an objection interrupts.

The Order of Probate Is the Line That Decides Everything

A Delaware will reaches the courthouse through the Register of Wills. Under 12 Del. C. § 1302(a) a will is proved before the Register of Wills of the county where the testator was domiciled at death, and § 1302(b) says a will must be declared valid by admission to probate before it can prove a transfer of any property or nominate an executor. The person holding the document has 10 days from learning of the death to hand it over under § 1301(a), and § 1301(b) makes a wilful failure a source of damages to anyone aggrieved plus contempt of the Court of Chancery once an order to deliver has issued.

Nothing about that opening is adversarial. 12 Del. C. § 1303 says proof of a will may be taken without notice to persons interested unless one of them requests notice by petition filed with the Court of Chancery. Delaware's first probate step is quiet by design, and that quiet is exactly why the review right at § 1309 exists.

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Before the Order: A Caveat Under § 1308

12 Del. C. § 1308(a) says a caveat against the allowance of an instrument as a will shall be received by the Court of Chancery at any time prior to the entry of an order of probate. The Court then appoints a time for hearing, awards citations for the parties interested, and orders service or publication of notice on parties who are not in Delaware, using the same machinery as § 1303.

Two details in that subsection are easy to read past. The Court does not have to adjourn the taking of the proof because a caveat arrived, though it may decree an adjournment and award other process. And § 1308(b) lets the Court determine the costs the caveat occasioned and decree who pays them, so a caveat is not a free option held open indefinitely.

The section names no filing window, because the order of probate supplies it. Once that order is entered, the caveat route closes and § 1309 is the only door left.

After the Order: Six Months, and Only for Someone Who Was Left Out

12 Del. C. § 1309(a) gives a right of review to any person interested who "shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in § 1303 of this title." That person has 6 months after the entry of the order of probate to petition, and the Court of Chancery orders the review on the petition. On review there are the same proceedings as upon a caveat, and the Court may affirm the allowance of the will and the granting of letters, or reject the will and revoke the letters.

Two things about that sentence deserve attention.

The clock runs from the order, not from the proof. The current wording arrived through 75 Del. Laws, c. 97, § 1, approved June 30, 2005, which deleted the old subsection (a) and substituted the text quoted above. The section's own catchline still reads "Review of proof of will; procedure," so a page that paraphrases the catchline instead of reading the body can shift the start date by the whole gap between the proof and the order. Read the body.

Eligibility is a condition, not a formality. The six months belongs to the person who was left out of the quiet opening described above. Someone who showed up when the will was proved, or who was served with citation or notice under § 1303 and did nothing, is outside the words of § 1309(a). Delaware does not publish a general post-admission contest period that anyone may use, and any page describing one is describing another state's code.

Title 12 leaves the phrase "person interested" undefined. The definitions section at 12 Del. C. § 101 covers child, good faith, heir, issue, parent and personal representative, and it goes no further. Who qualifies in a given estate is a question for counsel and the Court.

Six months is short, and it does not start where the other Delaware deadlines start. The creditor bar at 12 Del. C. § 2102(a) runs 8 months from the decedent's death whether or not notice was given, while the § 1309 review runs 6 months from the entry of the order of probate. Two clocks, two starting events, and neither one waits for the other. The Delaware probate timeline lays out the deadlines that sit around a contest.

Where a Delaware Will Contest Is Actually Filed

Delaware runs two offices with names close enough to swap by accident, and mixing them up sends a filing to the wrong counter.

The Register of Wills is the county probate office. 12 Del. C. § 2501 says that in performing the functions of the office, the Register of Wills of each county shall act only as a Clerk of the Court of Chancery. Under § 2502(b), where no notice is required by statute or rule, the Register may hear a matter and make the orders the Court of Chancery could make, subject to being set aside or modified by the Court within 30 days, after which those orders carry the same effect as if the Court had made them.

The Register in Chancery is the clerk of the Court of Chancery. Court of Chancery Rule 207 lists caveats against allowance of an instrument as will and petitions for review of proof of will among the matters that "shall be filed as civil actions with the Register in Chancery." A contest is a civil action from the day it starts.

Rule 188(a) adds a limit worth knowing early: only a personal representative appearing for themself, or an attorney admitted to practice in the Delaware Supreme Court who represents the personal representative, may appear in proceedings before the Register of Wills. Rule 205 fills the gaps, sending any probate procedure that no statute or probate rule prescribes to the general practice of the Court of Chancery.

The Grounds Delaware Puts in Statute

Neither § 1308 nor § 1309 lists grounds. Both send the parties to the same hearing, where the question is whether the document is a valid Delaware will. Title 12 supplies the rules that hearing tests.

Age and mind

12 Del. C. § 201 allows any person aged 18 or older, of sound and disposing mind and memory, to make a will of real and personal estate, and says no person under 18 is capable of making one.

The execution rules

12 Del. C. § 202(a) requires the will to be in writing and signed by the testator, or by another person subscribing the testator's name in the testator's presence and by the testator's express direction, and, subject to the choice-of-law rule at § 1306, attested and subscribed in the testator's presence by 2 or more credible witnesses. Section 202(b) then says any will not complying is void. Void is a stronger word than contestable, and it is the reason execution arguments carry weight here. Delaware will requirements walks through each element.

A witness who inherits

12 Del. C. § 203(b) says a will or any provision of it is not invalid because the will is signed by an interested person, and Chapter 2 voids no gift to a witness. An argument built on a beneficiary having witnessed the will does not survive that subsection on its own.

Revocation, and a later document

12 Del. C. § 208 limits revocation to cancelling by the testator or by someone in the testator's presence at the testator's express direction, a valid later will, or a signed writing attested and subscribed by 2 or more credible witnesses, while preserving implied revocation. 12 Del. C. § 209 revokes gifts and appointments to a former spouse on divorce or annulment and then closes with the rule that no other changes or circumstances revoke a Delaware will. Marriage after the will does not.

Fraud or forgery aimed at the affidavit

12 Del. C. § 1310 is the one place the code names a ground outright. It says that if the will is self-proved, compliance with signature requirements for execution is conclusively presumed and the other execution requirements are presumed subject to rebuttal, without the testimony of any witness, "unless there is proof of fraud or forgery affecting the acknowledgment or affidavit."

Capacity in fact, undue influence and fraud

These are Delaware common-law grounds. The code assumes them without defining them: the § 1305 self-proving certificate has each witness state that the testator was of sound mind and under no constraint or undue influence, and § 1312(a)(1) names undue influence and lack of capacity as bases for challenging the exercise of a power of appointment. What either proves in a specific estate is a question for a Delaware attorney and the Court, and no page can promise an outcome.

Separately, 12 Del. C. § 210 makes it a class E felony to wilfully add to, alter, deface, erase, obliterate, mutilate, conceal, destroy or steal an instrument purporting to be a will. That is a criminal statute, distinct from the civil liability § 1301(b) imposes for failing to deliver a will.

What the Self-Proving Affidavit Takes Off the Table

The Delaware self-proving certificate at 12 Del. C. § 1305 is optional and it is powerful. Under § 1310 it makes signature compliance conclusively presumed, which is a higher bar than the rebuttable presumption it creates for the remaining execution requirements. A challenger who wants to reopen the signatures on a self-proved Delaware will is arguing fraud or forgery affecting the acknowledgment or affidavit, not merely disputing what a witness remembers.

No-Contest Clauses Are Enforceable, With Five Exceptions

Many states leave in terrorem clauses to case law. Delaware wrote the answer down. 12 Del. C. § 3329(a) says a provision of a will or trust that would reduce or eliminate the interest of a beneficiary who initiates or participates in an action to contest its validity, or to set aside or vary its terms, shall be enforceable.

Section 3329(b) then withholds that effect from five situations:

An action brought by the trustee of a trust or the personal representative under a will.
An action in which the beneficiary "is determined by the court to have prevailed substantially."
An agreement among beneficiaries settling a dispute about the will or trust.
An action to determine whether a proposed or pending motion, petition or other proceeding even counts as a contest within the meaning of the clause.
An action by a beneficiary for a construction or interpretation of the instrument.

The rule reaches back. Delaware enacted it as 12 Del. C. § 3409 in 74 Del. Laws, c. 82, § 4, approved June 30, 2003, renumbered it to § 3329 in section 7 of the same act, and said in section 8 that it takes effect on enactment and applies to wills and trusts whenever created. A clause written into a 1990s will is inside the statute.

Note what is absent. Several states excuse a challenger who had probable cause for bringing the case. Delaware's list does not, and its second exception turns on the outcome rather than on the reason for filing, which is a harder thing to reach. A named beneficiary weighing a caveat against a will that carries such a clause is weighing a real forfeiture, and item 4 exists so that asking the Court whether a step even counts as a contest is itself safe.

Validating a Will Before the Testator Dies

12 Del. C. § 1311 is Delaware's planning answer to all of the above, and it is close to unpublished on the open web.

A living testator may notify in writing any beneficiary named in the will, any person who would inherit under Chapter 5 if the testator died intestate on the date of notice, and anyone else the testator wants bound. The notice includes a copy of the will and states that a challenge must be filed within 120 days of receipt. A recipient who wants to contest files a proceeding in the Court of Chancery within that window, following procedures comparable to a § 1308 caveat.

If the 120 days expired before the testator died, and the testator resided in Delaware at death, § 1311(a) bars a duly notified person from commencing a § 1308 or § 1309 proceeding and from becoming a party to one another person started. If the testator died inside the window, the section has no application. Three limits keep it honest: § 1311(d) says a testator's failure to use the procedure is not evidence that the will is invalid, § 1311(e) says a later will or codicil is not validated by the earlier notice, and § 1311(f) preserves the surviving spouse's elective share, the spousal allowance, and any intestate-share claim.

A Power of Appointment Runs on Its Own Clock

If the fight is about how a power of appointment was exercised rather than about the will as a whole, the deadline changes. 12 Del. C. § 1312(a) applies where the power was exercised by a written instrument other than a will and the property passes only at the exercisor's death. A proceeding must start by the first of three events: 120 days after the exercisor gave the contesting person written notice with the required contents, 2 years after the exercisor's death, or the date the right to contest was precluded by adjudication, consent or other limitation. The 120-day branch reaches only challenges based on execution formalities, undue influence over the exercisor, or the exercisor's lack of capacity.

Where the power was exercised in the will itself, § 1311(a) and § 1311(c) govern instead, and only if the testator followed the extra notice steps in subsection (c).

If the Estate Owns Delaware Real Estate, a Notice Follows the Case

12 Del. C. § 1905(d) is easy to miss and lands on the executor rather than the challenger. Where any action affecting title to the decedent's Delaware real estate is brought in any court, whether by caveat, petition for review, petition for instructions or otherwise, the executor or administrator has 10 days to file a notice of the pendency of that action in the Register of Wills office of any county where the decedent owned real estate other than the county that granted letters. The subsection preserves any other notice that may be filed. A contest touching a house in a second county is a filing obligation, not just a docket entry.

Two Deadlines Sitting Next to a Contest That Are Not One

A disappointed spouse and a disappointed trust beneficiary each have a separate clock, and both are shorter than people expect.

The elective share. Under 12 Del. C. § 906(a) a surviving spouse elects by filing a petition in the Court of Chancery, and mailing or delivering it to the personal representative, within 6 months after the grant of letters testamentary or of administration. The Court may extend that time for cause shown, but only on a petition made before the period expires. This runs from letters, while the § 1309 review runs from the order of probate, so the two dates are related and rarely identical.

A revocable trust. 12 Del. C. § 3546(a) bars a proceeding contesting the validity of a trust after the first of four events: 120 days after the trustee's written notice with the required contents, 2 years after the trustor's death, the time in which a petition for review of a will could be filed under Title 12 where the trust was revocable at death and was identified in the last will, or the date the right was precluded by adjudication, consent or other limitation. That third branch imports the § 1309 six months into trust practice, so a pour-over estate can have one deadline rather than two. Delaware trust administration covers the trustee's side.

Appeals

A caveat and a review are civil actions in the Court of Chancery, so the appeal runs to the Delaware Supreme Court. Under 10 Del. C. § 145, no appeal from a final judgment or decree of the Court of Chancery is received or entertained unless the praecipe or notice of appeal is filed with the Clerk within 30 days after the date of the judgment or decree.

A Published Rule That Does Not Reach Your Estate

Court of Chancery Rule 184 sets out appeals from Registers of Wills and exceptions to accounts across five subsections, and it is still printed in the current rule set. Subsection (e) then says the rule "shall not apply to any proceedings concerning estates of persons dying on or after December 25, 1974." Rule 187 confirms the other side of the same date: Rules 187 through 202 apply to estates of persons dying on or after December 25, 1974. Anyone who finds Rule 184 through a search and reads it as the route for a modern Delaware estate has read a rule that cannot reach them.

Problems That Look Like Contests and Are Not

Nobody has produced the will. That is 12 Del. C. § 1301, a 10-day delivery duty backed by damages and contempt, not a validity fight.
The will is valid and the spouse was cut out. That is the elective share at 12 Del. C. § 906 and the spousal allowance, on their own clock.
The complaint is about how the estate is being run. Objecting to a personal representative, an accounting or a sale is separate from the will's validity. Delaware executor duties sets out what the job requires, and Rule 207 lists petitions for removal of personal representatives as their own civil action.
There is no will at all. Then the estate passes under the Delaware intestacy statutes, and the argument is about who qualifies as an heir.
The estate is small and the family disagrees. The affidavit route in Delaware small estate administration still assumes a valid will where one exists, so a genuine validity dispute belongs in the Court of Chancery either way.

Frequently Asked Questions

How long do you have to contest a will in Delaware?

It depends on which side of the order of probate you are standing on. Until the Court of Chancery enters that order, 12 Del. C. § 1308 says a caveat against the allowance of the instrument as a will shall be received at any time. Once the order is entered, 12 Del. C. § 1309(a) gives a right of review for 6 months after the entry of the order of probate, and only to a person interested who did not voluntarily appear when the will was proved and was not served with citation or notice under § 1303.

What are the grounds to contest a will in Delaware?

Neither § 1308 nor § 1309 lists grounds. Both point at the same hearing, so the argument is that the document is not a valid Delaware will. Title 12 supplies the testable rules: § 201 requires age 18 and a sound and disposing mind and memory, § 202(a) requires writing, the testator's signature and two credible witnesses who attest and subscribe in the testator's presence, § 202(b) makes a will that misses any of that void, § 208 controls revocation, and § 1310 exposes a self-proved will to proof of fraud or forgery affecting the acknowledgment or affidavit. Capacity in fact and undue influence come from Delaware case law rather than from a numbered section, which is one reason a licensed Delaware attorney should read the file before anything is filed.

What is a caveat in Delaware probate?

A caveat is the objection filed before the will is allowed. Under 12 Del. C. § 1308(a) the Court of Chancery receives it at any time prior to the entry of an order of probate, then appoints a time for hearing, awards citations for the parties interested, and orders service or publication on parties outside Delaware under § 1303. The same subsection says the taking of the proof does not have to be adjourned because a caveat arrived. Under § 1308(b) the Court may decide who pays the costs the caveat caused.

Who can file a petition for review of a Delaware will?

12 Del. C. § 1309(a) opens the review to a person interested who did not voluntarily appear at the taking of the proof of the will and was not served with citation or notice as provided in § 1303. A person who appeared, or who was served and stayed home, is outside the words of the section. Title 12 does not define the phrase person interested: the definitions at 12 Del. C. § 101 cover child, good faith, heir, issue, parent and personal representative and stop there.

Where is a Delaware will contest filed?

With the Register in Chancery, not the Register of Wills. The will itself is proved before the Register of Wills of the county where the testator was domiciled at death under 12 Del. C. § 1302(a), and 12 Del. C. § 2501 says that in performing the functions of the office the Register of Wills acts only as a Clerk of the Court of Chancery. Court of Chancery Rule 207 then routes caveats against allowance of an instrument as a will and petitions for review of proof of will to the Register in Chancery, to be filed as civil actions. The two offices have similar names and different jobs.

Do no-contest clauses work in Delaware?

Yes, and Delaware says so by statute rather than leaving it to argument. 12 Del. C. § 3329(a) makes a provision of a will or trust that reduces or eliminates the interest of a beneficiary who initiates or participates in an action to contest it enforceable. Subsection (b) carves out five situations: an action brought by the trustee or the personal representative, an action in which the court determines the beneficiary substantially prevailed, a settlement agreement among beneficiaries, an action to determine whether a proceeding even counts as a contest, and an action for construction or interpretation. Probable cause is not one of the five.

Does Delaware pre-mortem validation block a will contest?

It can. 12 Del. C. § 1311 lets a living testator send beneficiaries and heirs a copy of the will with notice that a challenge must be filed in the Court of Chancery within 120 days of receipt. If that period expired before the testator died, and the testator resided in Delaware at death, a person who was duly notified may not commence a § 1308 or § 1309 proceeding and may not join one someone else started. If the testator died first, § 1311 says the limitation has no application. Section 1311(f) leaves the elective share and any intestate-share claim untouched.

Sources:

Title: 12 Del. C. § 1301, Production of will; liability, and § 1302, Proving will, and § 1303, Notice and subpoena to persons interested. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c013/index.html
Title: 12 Del. C. § 1308, Caveat against allowance of instrument as will; procedure, and § 1309, Review of proof of will; procedure, and § 1310, Formal testacy proceedings; contested cases; testimony of attesting witnesses. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c013/index.html
Title: 12 Del. C. § 1305, Self-proved will, and § 1311, Pre-mortem will validation, and § 1312, Limitation on action contesting validity of exercise of power of appointment. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c013/index.html
Title: 12 Del. C. § 101, Definitions. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c001/index.html
Title: 12 Del. C. § 201, Who may make a will, and § 202, Requisites and execution of will, and § 203, Witnesses; persons competent. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c002/sc01/index.html
Title: 12 Del. C. § 208, Revocation of wills generally, and § 209, Revocation by divorce; no revocation by other changes or circumstances, and § 210, Alteration, theft or destruction of will; class E felony. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c002/sc01/index.html
Title: 12 Del. C. § 906, Proceeding for elective share; time limit. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c009/index.html
Title: 12 Del. C. § 2102, Limitations on claims against estate. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c021/index.html
Title: 12 Del. C. § 1905, Inventory and appraisal; filing requirements, form, contents and supporting affidavits; notice of action affecting title. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c019/index.html
Title: 12 Del. C. § 2501, Register of Wills is a Clerk of Court of Chancery, and § 2502, Powers. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c025/index.html
Title: 12 Del. C. § 3329, Effect of no-contest provision. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c033/index.html
Title: 12 Del. C. § 3546, Limitation on action contesting validity of trusts. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title12/c035/sc03/index.html
Title: 10 Del. C. § 145, Time for appeal from final judgment of the Court of Chancery. Publisher: Delaware Code Revisors, State of Delaware. Publication Date: Accessed 2026-09-10. URL: https://delcode.delaware.gov/title10/c001/sc03/index.html
Title: Rules of the Court of Chancery of the State of Delaware, Rule 184, Rule 187, Rule 188, Rule 205 and Rule 207. Publisher: Delaware Court of Chancery, Delaware State Courts. Publication Date: Accessed 2026-09-10. URL: https://courts.delaware.gov/forms/download.aspx?id=160908
Title: 75 Del. Laws, c. 97, An Act Amending Title 12 of the Delaware Code Relating to Wills and Trusts. Publisher: Delaware General Assembly. Publication Date: Approved June 30, 2005. URL: https://legis.delaware.gov/SessionLaws?volume=75&chapter=97
Title: 74 Del. Laws, c. 82, An Act Amending Title 12 of the Delaware Code Relating to Trusts (section 4 enacted the no-contest provision as § 3409, section 7 redesignated §§ 3401 through 3411 as §§ 3321 through 3331, and section 8 applied it to wills and trusts whenever created). Publisher: Delaware General Assembly. Publication Date: Approved June 30, 2003. URL: https://legis.delaware.gov/SessionLaws?volume=74&chapter=82
Title: 80 Del. Laws, c. 153, An Act to Amend Titles 10 and 12 of the Delaware Code Relating to Decedent's Estates and Fiduciary Relations. Publisher: Delaware General Assembly. Publication Date: Approved August 7, 2015. URL: https://legis.delaware.gov/SessionLaws?volume=80&chapter=153

It is not legal advice.