Initiating a legal action to contest a last will and testament should be carefully considered. A person cannot simply contest a will because he or she does not like the terms. Judges do not tolerate will contest claims that have no merit and that are intended only to delay the proper administration of an estate. Moreover, contesting a will is a lengthy legal process that requires an estate litigation attorney. The costs to litigate a claim can be expensive. Therefore, before someone challenges the validity of a will, the circumstances should be carefully considered to make sure there is a good chance of success.
Step 1: Identify the Problem
Family members often question the validity of the will. Concerns arise when a family member is unexpectedly left out of the will entirely or a person’s share of the estate is unexpectedly reduced. When this happens, it is quite normal for a person to question whether the will truly reflects the decedent’s wishes. In this situation, the person must think about the facts and circumstances surrounding the will signing, the health and mental state of mind of the decedent when the will was created, and other things that may not add up or that would suggest that something may be amiss.
Step 2: Was the Will Accepted by the Register of Wills?
When a will is offered for probate by the named executor, the will is presented to the Office of the Register of Wills in the county where the decedent last resided. The Office of the Register of Wills determines whether the will is the will of the decedent and whether the basic requirements of a valid will are satisfied. 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 or Executor is the person who is requesting the Letters Testamentary. If the Register of Wills accepts the will as valid, the Register will issue Letters Testamentary to the Personal Representative. The Personal Representative will then administer the estate pursuant to the provisions of the will and Pennsylvania law.
Step 3: Developing a Theory
The “testator” is a person who creates a Will. If the Register of Wills accepts the will, then there is a presumption that the will accurately represents the testator’s wishes. When a person wants to challenge the validity of the will, he or she must understand that a court will assume that the will is valid unless and until evidence proves otherwise. Therefore, a person must first develop a theory as to why the will is not valid.
Step 4: Legal Grounds to Contest a Will
A theory must be rooted in a legal basis to challenge or contest a will. If a theory does not fall within one of the following legal bases, then there may not be grounds to contest a will.
- Diminished or Lack of Testamentary Capacity. The testator must be 18 years of age and of “sound mind” to make a will. If the testator is not 18 or if the testator is not of sound mind, then the will is not valid. The term “sound mind” means that the testator had an intelligent knowledge regarding his natural objects of his bounty, of the property he or she possesses, and of what he desires to do with his or her estate, even though his or her memory has been impaired by age or disease.
- Undue Influence. Undue influence occurs when a person who is in a confidential relationship with the testator receives a substantial benefit under a will from a testator who had a weakened intellect at or around the time the will was executed. A confidential relationship is established when someone is in a close relationship with the testator and occupies a superior position over the testator whether it be intellectually, physically, or morally. A weakened intellect need not rise to the level of lack of capacity.
- Fraud. Fraud is a trick or some similar action that induces a person to dispose of his or her property contrary to his or her wishes, or in such a way as he or she would not do so but for the fraud.
- Forgery. Forgery may be the unauthorized signing of a will by another, the fabrication of a dispositive scheme over the testator’s general signature, or the substitution of one page of a will with another.
- Mistake. This can occur when the testator signs the will thinking he or she was signing some other document or where he or she intended to sign the will but signed another document.
- Insane Delusion. If the will was signed as a direct result of an insane delusion, the will be invalid. An insane delusion is an insane belief or figment of one’s imagination or a belief in so
Step 5: Standing to Contest A Will
If one or more of the grounds to contest a will are apparent, then the next issue is whether an individual has “standing” to contest the will. A person has legal standing if the person is aggrieved by a decree of the Register of Wills. In will contest cases, the issue of standing is usually satisfied if a person will receive less under the probated will as compared to a prior will or what the person would receive if there was no will at all. If a person has no legal standing, then the person cannot bring a claim to contest a will.
Step 6: Gathering the Evidence
Lawyers with experience in will contest matters know that a successful outcome is contingent upon having the evidence to overcome the presumption that the will is valid and expresses the desires and intentions of the testator. What makes these cases difficult is that the best witness, who is often the testator, is now deceased. Without evidence, a case will fail. The legal grounds in each case will dictate the type of evidence needed to prove a case. Evidence often comes from the following:
- Testimony from family members or friends with personal knowledge of the testator’s state of mind.
- Testimony from family members or friend who were present when the will was signed by the testator
- Testimony from treating physicians
- Testimony from the person who drafted the will
- Medical records of the testator
- Expert testimony
Step 7: Procedural Issues
Procedurally, a person has two options for bringing an action to challenge the validity of the Will. Both options have advantages and disadvantages and, as with any legal strategy, a person should seek the advice of counsel.
A person may initiate an attack on the Will by filing a formal Caveat with the Register of Wills. The Caveat is a request for the Register of Wills not to probate the Will until the person who files the Caveat is given a hearing before the Register. The Register may accept an informal Caveat if local practice permits it. A formal Caveat is a legal document with allegations, facts, and a request for relief. The Caveat is advantageous because it precludes the personal representative from qualifying.
An Appeal from Probate is an alternative to the Caveat. The Appeal from Probate would be necessary after the Register of Wills has already accepted the will for probate and issued Letters Testamentary.
After the Caveat or Appeal is filed in the Orphan’s Court, a Judge will be assigned to the case. The Judge will often hold a conference with the attorneys to discuss the case and establish a case management order. A case management order is a schedule for the legal proceeding. The schedule will set deadlines to complete discovery, file motions, and identify experts. Discovery is an opportunity for both sides to gather evidence that can be used at hearing or trial. Discovery may include written questions that are served on the opposing party that must be answered truthfully. Discovery may also include serving the opposing party with a request for documents. Other common discovery tools or methods include depositions and the serving of subpoenas on any non-party for documents or testimony.
After discovery is completed, the Judge will usually hold a pre-trial conference with the attorneys. The conference is held to discuss any remaining issues or potential dispositive motions. After the conference, the Judge will issue a trial date.
Costs to Contest a Will
The expenses for contesting a will in Pennsylvania include primarily court costs and legal fees. There may be additional expenses such as charges for obtaining medical records, expert witnesses, and depositions. The overall expenses will vary depending on the complexity of the case and the evidence necessary to achieve a successful outcome. This is why initiating a case should be carefully considered with the assistance of experienced estate litigation attorneys.
Pennsylvania Will Contest – The Martin Law Firm, P.C.
If you wish to contest a will in Pennsylvania or if you are a Personal Representative who needs to defend an Appeal from Probate, you should contact an experienced attorney immediately. Contact the Martin Law Firm today for a free case evaluation. This includes a free discussion about your particular situation, and we can advise you on how we can help. Call us today at 215-646-3980.