October 2018 Newsletter
GROUNDS FOR CONTESTING A WILL
After a person dies, his/her Will is offered for probate by the Personal Representative/Executor named in the Will. The Register of Wills determines the sufficiency of the Will. Specifically, the Will is reviewed to determine whether it was signed by the decedent at the end of the document, whether there were witnesses who attested the signing and whether the person named as the Personal Representative/Executor is the person who is asking for letters of testamentary. 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.
If you believe someone’s last Will and Testament is invalid or the result of some wrongdoing, you may have the right to contest it. However, you cannot challenge a Will simply because you don’t like its terms. There are five legal reasons for a Will contest in most states, and it can be very difficult, complicated, time consuming and costly from attorney and expert fees to court costs to prove any one of them. Courts don’t often overturn experienced attorney-drawn Wills.
With that said, if a loved one died leaving a Will which: 1) appears to be the product of coercion or undue influence by some outside individual; or, 2) was executed after the decedent lost the mental capacity to sign a Will, it is extremely important to understand how to contest a Will and whether or not it might be cost effective and worth the struggle. In making this decision it will help to know something about the process of invalidating a Will and to discuss the following five legal grounds with a qualified estate litigation attorney.
Who Can Contest a Will
The Probate, Estates and Fiduciaries Code in Pennsylvania grants a right of appeal to any party in interest who is aggrieved by a decree of the Register of Wills. That is, one must be a party in interest to have standing to contest a Will. Standing to challenge a document should be established by looking at what benefit the contestant may have had if the challenged document was not admitted to, or offered for, probate. Simply put, any person whose share in the estate will be larger if probate is not granted is party in interest and is aggrieved.
Grounds for Contesting a Will
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Lack of Testamentary Capacity
The person executing the Will, called the “testator,” must be at least 18 years old and of sound mind. The testator has testamentary capacity if, at the time of execution of the Will, he or she had an intelligent knowledge regarding the natural objects of his bounty, of the property he possesses, and of what he desires to do with his estate, even though his memory might be impaired by age or disease. Some factors the courts consider to determine whether a testator had testamentary capacity include: knowledge of property and of what his estate consists, knowledge of relatives where some or all of them are beneficiaries, and understanding of the persons who are to share in the estate. The testator may have capacity although old, weak, and sick. Physical weakness will not create incapacity as long as sufficient mental capacity exists.
Proof of execution of the Will raises a presumption of testamentary capacity, which can only be overcome by clear, strong and compelling evidence. Court adjudicated incapacity does not command the conclusion that the Will is invalid for lack of capacity; however, it shifts the burden of going forward to the proponent who must show that the Will was executed during a lucid interval.
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Undue Influence
Undue influence, which are the vast majority of Will contests, can be proven in two ways: (1) directly, by evidence of acts which prejudice a testator’s mind or destroy his free agency; and, (2) indirectly, through the shifting of the burden of proof.
To invalidate a Will through direct evidence, there must be imprisonment of the body or mind or threats or misrepresentations, or physical or moral coercion, to such a degree as to prejudice the testator’s mind, destroy his free agency or act as a present restraint upon him making the Will. The fact that the scrivener (writer), of the Will was a reputable attorney will be accorded great weight in favor of validity.
Indirect proof of undue influence was addressed by the Pennsylvania Supreme Court in the estate litigation case of Estate of Alice G. Clark, Deceased. The Court held that where: (1) a person who is in a confidential relationship with the testator, (2) receives a substantial benefit under the proposed Will, and, (3) at or around the time the Will was executed the testator had a weakened mental intellect, a presumption of undue influence arises and the burden of proof shifts to the proponent to prove the absence of undue influence.
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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. Burden of proving forgery is on the contestant, and must be established by clear, direct, precise and convincing evidence.
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Fraud
Fraud is a trick, artifice or management which induces a person to dispose of his property or to do some act contrary to his wishes or in such way as he would not do but for the fraud. To prove fraud, the contestant must show: (1) decedent had no knowledge of the concealed or misstated fact, and, (2) the decedent would not have made the same bequest had he known the truth.
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Mistake
Mistakes in the execution of the Will can happen in two ways: mistake in identity of the instrument executed and mistake in inducement for executing the Will. Mistake in identity of instrument occurs where testator executed his Will thinking he was signing some other document or where he intended to sign his Will but executed another document. There can also be mistake in contents or effect. This occurs when the Will as executed does not reflect testator’s true intent.
Process to Contesting a Will
The contestant may initiate an attack on a Will by filing a caveat with the Register of Wills. The caveat requests the Register not to probate the Will until a hearing before the Register. The Register will determine the case himself or certify record to the Orphans’ Court for hearing. If Register hears all the evidence, he may enter a decree refusing probate, may dismiss the caveat and probate the Will or certify the record to the Orphans’ Court. Once a Will has been probated, the contestant must attack the validity of the Will by an appeal to the Orphans’ Court.
In Terrorem (Forfeiture) Clause
Many times a testator will include an “In Terrorem” (Forfeiture) Clause in his Will to discourage Will contests. That is, if the Will is challenged by a beneficiary, he or she may be subject to losing all or a portion of the inheritance that was specified in the Will. Whether such a forfeiture clause can be enforced varies by state and the circumstance of each situation. In Pennsylvania, an in terrorem provision in a Will is unenforceable if “probable cause” exists for instituting proceedings. Probable cause exists when a reasonable person, properly advised, would conclude that there is a substantial likelihood that the Will contest will be successful.
Conclusion
If you believe you have reason to contest a Will based on any of the reasons or factors set forth above and would like to discuss the merits of your case and/or your rights and options in challenging a Will, you need to consult a qualified estate litigation attorney. Please feel free to contact us anytime to discuss how we can assist or guide you in having your rights vindicated with proper representation.
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