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Can I Contest My Father’s Will?

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“Can I Contest My Father’s Will?” by Attorney Jon J. Gasior (Audio)

No matter how old you are, the loss of a parent is never easy to accept. If you recently lost your father, you are undoubtedly going through a period of grief and heightened emotions. At the same time, there are practical and legal issues relating to your father’s death that must also be addressed. At the top of that list is the administration of your father’s estate. If your father left behind a Last Will and Testament, that Will must be submitted for probate and then used to determine how his estate assets are distributed. What happens, however, if you are concerned about the validity of the Will submitted to the court? Can you contest your father’s Will? The Annapolis probate attorneys at Sinclair Prosser Gasior can explain who can contest a Will in Maryland and what you must prove to be successful in a Will contest.

Probate Basics

Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed.  Anyone in possession of an original Will is required to submit that Will to the appropriate court to begin the probate process. In Maryland, probate is handled in Orphans’ Court.  It is during probate that you would contest the Will submitted to the court if you believe you have grounds on which to do so. The process of contesting a Will in Maryland is referred to as a “caveat proceeding.”

Who Can Initiate a Will Contest in Maryland?

Even if you believe you have a valid reason to contest a Will, to do so you must have “standing.” In fact, the first consideration when discussing the possibility of pursuing a Will contest should be whether or not you have “standing.” Standing is basically just the legal term used to mean you have the legal right to bring the action in question.  In Maryland, beneficiaries named in the Will always have standing. In addition, legal heirs of the estate also have standing. You are a legal heir if you would inherit under the state’s intestate succession laws. Intestate succession laws dictate who inherits from an estate if the decedent died intestate, or without a Will. Typically, this refers to a spouse and/or children. If the decedent was not survived by a spouse or child, more distant relatives become heirs, such as parents or siblings. As a child of the decedent, you would have standing to contest the Will as an heir, even if your father did not name you as a beneficiary.

Do You Have a Valid Reason to Contest the Will?

Although the sensationalized stories we all hear on the news would have you believe otherwise, the truth is that you cannot contest a Will without a good, legal, reason to do so. Having standing only gives you the right to contest the Will. You must also have legal grounds on which the Will could be invalidated to move forward with a Will contest. Being unhappy with the inheritance you were left does not qualify as a good reason. In Maryland, you must allege, and ultimately prove if you wish to be successful, one of the following grounds that invalidates the Will:

  • Conflict with law – for a Will to be valid in Maryland certain formalities must be adhered to and the Will must meet certain requirements, including:
    • It must be in writing
    • It must be signed by the testator (the person whose will is being written) or by someone else for them in their presence and with their permission
    • It must be attested and signed by two credible witnesses.
    • The testator must be at least 18 years old and legally competent at the time of signing
  • Undue influence – this refers to a situation where the Testator was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not their own.
  • Mental impairment — the decedent must have been suffering from cognitive issues that affected his/her reasoning at the time the Will was created and it caused the decedent to write the Will in a way that he/she wouldn’t have considered if he/she were of sound mind.
  • Fraud or forgery– this can cover a wide range of situations from tricking a testator into signing a document that the testator did not realize was a Will to inducing a testator to make gifts in a Will based on fraudulent information. It can also refer to a Will being an outright forgery
  • Subsequent Will – if a newer Will is located, it will usually invalidate the older Will.

 

Jon J. Gasior, Estate Planning Attorney
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About Jon J. Gasior, Estate Planning Attorney

His personal experience with family and the problems that resulted from their failure to create an estate plan resulted in his desire to learn more about this area of the law. From his work in the Elder Law Clinic, he further realized the need to plan not only for death, but also for incapacity during their lifetime.