When a Will is propounded (i.e., offered for probate), the heirs-at-law of the testator (e.g., the person who made the Will) will be notified by the probate court of the petition. The notice will be made either by certified mail or service of the petition by a sheriff’s office. Once an heir-at-law becomes aware of the petition to probate the Will, she will have an opportunity to file a caveat or objection to the petition. One reason a caveat may be filed is to contest the validity of the Will. A Will may be contested for various reasons, the most common being:
- The testator did not have the capacity to make a Will.
- The testator was unduly influenced to make a Will he did not desire to make.
- The formalities of executing the Will were not met.
- One or more of the witnesses was incompetent (i.e., did not qualify to be a witness).
- An event occurred that caused the Will to be revoked (marriage, divorce, etc.).
- The Will violates a contract to make a Will.
The majority of Will contests are based upon incapacity and undue influence, and both claims usually are asserted in the same case. Whether a testator was incapacitated or unduly influenced is a very fact-intensive issue that requires a significant investigation into not only the circumstances around the execution of the Will but also the events prior to and after the execution. These types of Will contests are difficult to litigate due to the volume of information that must be obtained, analyzed, and then prepared for presentation at trial. Still, as with any case, the outcome will depend mostly on the facts.
Will contests based on the formalities of the execution and revocation by event are fairly simple and typically are determined on only one or two facts and often without the need for a trial. However, without knowledge as to what formalities must be met or what events might revoke a Will, a simple case might end up being no case at all, so it is important to consult an attorney with experience in estate disputes to discuss these matters.
There is a very short window of time to file a Will contest with the probate court. The law requires that an interested person file a caveat to a Will be filed not more than 10 days after the person is served with the petition (13 days if service is by certified mail). In most civil cases, a person has 30 days to answer a petition. The reason for the short time frame is due to the need for the appointment of a personal representative to begin managing the estate, as an estate without a representative cannot manage its property or pay its bills.
Will contests may be tried before a jury, but a jury trial must be demanded at the time or within 30 days of filing the objection. In counties with less than 90,000 people (based on the 2010 U.S. census), a jury trial is not permitted at the probate court level but, in the event of an adverse outcome to either party, may be appealed to the superior court for a jury trial there.
During the pendency of a Will contest, the probate court may appoint a temporary administrator to represent the estate. The temporary administrator’s authority will be limited to marshaling, protecting, and preserving the assets of the estate. The temporary administrator will not be able to sell any assets to pay estate debts without special permission from the court and only after allowing objections from interested parties.
If you believe you have a basis for contesting a Will or are a nominated executor in a Will being contested, you should understand the challenges ahead. The issues are rarely black and white, and an attorney can help you determine the best way to proceed. Please call us or send us an inquiry, and we’ll discuss the matter with you right away.
