Making decisions when you are highly emotional is not usually a wise idea; however, there are a number of practical and legal decisions that often must be made shortly after the death of a loved one. You may, for example, be thinking about contesting a parent’s Last Will and Testament. Such an important decision should never be made without first consulting with an experienced attorney. An Annapolis probate attorney at Sinclair Prosser Gasior, however, explains what a Will contest entails and offers some factors to consider when deciding whether or not to pursue a Will contest.
How Does a Will Contest Work?
When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate. Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. The probate process is typically initiated by the person named as the Executor in the decedent’s Will, if one was left behind. Another function of the probate court (referred to as “Orphans Court” in Maryland) is to authenticate the Will submitted for probate. In Maryland, a petition to “caveat a will” (contest a Will) must be filed within six months following the first appointment of a personal representative under a Will but can be filed as early as three months after probate. However, it is possible for a petition to caveat a Will to be filed prior to the filing of a petition for probate with the Orphans’ Court. If the petition to “caveat” the Will is filed either before the filing of a petition to probate or after administrative probate (after the Letters of Administration are provided to the Executor) then the petition has the effect of a request for judicial probate. Judicial probate occurs when the Orphans’ Court reopens the issue of the validity or authenticity of the will in question.
Factors to Consider When Considering a Will Contest
If there is something about the Will that bothers you, it can be easy to jump to the conclusion that contesting the Will is the correct course of action. It is imperative that you separate your emotional reaction to the terms of the Will from any legitimate concerns you have about the validity of the Will itself. You cannot challenge a Will simply because you are unhappy with the terms of that Will. Instead, you must ultimately prove legal grounds on which the Will can be declared invalid. In Maryland, the following are legal grounds on which you may base a Will contest:
- Lack of testamentary capacity – challenging the Testator’s mental state when the Will was executed.
- Undue influence – claiming that someone exerted improper influence on the Testator during the drafting of the will.
- Forgery – challenging the Will because the Will was forged
- Revocation – claiming that the Will was voided, or canceled out by a later Will or similar document.
Contestants in a Will contest frequently claim “lack of testamentary capacity” as the grounds on which they base their challenge, particularly if the decedent was a senior at the time of death. Proving that a Testator lacked testamentary capacity is often much more difficult than it sounds though. The law considers a Testator to have the requisite capacity if, at the time the Will was executed, he/she:
- What property he/she actually owns;
- The natural objects of his/her bounty (his/her relatives and descendants);
- What a Will is and how he/she is disposing of his/her property;
- The overall scheme of disposing of his/her property.
Even a senior who was suffering from the early stages of dementia may have had sufficient capacity at the time the Will was signed.
Before you decide to proceed with a Will contest it is in your best interest to consult with an experienced probate attorney about the strength of the grounds on which you plan to contest the Will. Given the financial and emotional cost involved in contesting a Will, you should be reasonably certain that you have a good chance of being able to prove one of these grounds before deciding to move forward.
Contact an Annapolis Probate Attorney
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about contesting a Will, contact an experienced Annapolis probate attorney at Sinclair Prosser Gasior by calling (410) 573-4818 to schedule an appointment.