After a person dies, the Will is offered for probate by the Personal Representative/Executor named in the Will. Offering the Will for probate simply means that the Will is presented to the Register of Wills in the county where the decedent last resided for the Register of Wills to determine the sufficiency of the Will. Specifically, the Will is reviewed to determine whether it was signed by the decedent, whether witnesses have attested to the signing, and whether the person named as the Personal Representative is the person who is asking for letters testamentary, which is the legal recognition of the Personal Representative to formally and legally administer the estate.
Unfortunately, the Register of Wills does not review the Will to determine whether the asset distribution makes sense or whether the proper beneficiaries were named in the Will. Too often, a close family member believes that he or she was surprisingly left out of the Will entirely or that he or she believes that they are not receiving a fair share of the estate. In that situation, the individual must think about all of the facts and circumstances surrounding the Will signing and determine whether things do not add up or that something may be amiss. That individual should contact an attorney to discuss the situation. If proper grounds exist, then an individual may decide to contest the Will in court.
A Will contest is a legal proceeding to challenge whether or not a Will is valid. To contest a Will, there must be legal grounds to do so. Common grounds include lack of testamentary capacity, undue influence, fraud, forgery, mistake or insane delusion. Each of these grounds for contesting a Will have their own unique elements to prove in order to succeed in a court of law. For example, in order to make a Will, a person must have “testamentary capacity”. This means that the testator (the person making the will) must be at least 18 years of age and of “sound mind” to make a Will. More specifically, a person has testamentary capacity if at the time he or she signs the Will, he or she had an intelligent knowledge regarding the property he possesses and of what he desires to do with that property, even though his or memory may be impaired by age or disease. To prove a claim for lack of testamentary capacity, one would have to present sufficient evidence to show that a person did not have sound mind. One way this can be achieved is with a careful review of the medical records of the decedent with expert medical testimony describing the decedent’s state of mind at or near the time of signing the Will.
If there appears to be grounds to challenge the Will, there are other legal rules that must be followed. One of which is the concept of “standing”. A person must have standing in order to bring a Will contest claim. A person has standing if the person is aggrieved by a decree of the Register of Wills. Generally, any person whose share in the estate is larger or smaller depending on whether probate is granted or refused is a proper party.
In Pennsylvania, if a person has standing and has grounds to contest a Will, the person, with the help of an attorney, often files a Petition with the Orphan’s Court. This starts the legal proceedings. There are procedural rules that are common in Pennsylvania and other procedural rules that are unique to the specific county. There are procedures and time limitations for bringing the action, answering the Petition, conducting discovery, bringing motions, and trying the case. Experienced attorneys are invaluable in this regard.
Bringing a Will contest claim should be carefully decided. The courts do not tolerate claims that have no merit and are intended only to delay the proper administration of the estate. The court may require that an individual bringing a Will contest action be bonded. The court would determine the amount of the bond. Also, the court could award reasonable counsel fees. Counsel fees could be awarded against a person whose actions rise to the level of bad faith. As such, it is extremely important to contact an experienced attorney in Will contest matters and carefully discuss the facts and circumstances of the case, the costs, and the likelihood of success.