Will Contests – Part 1

Preliminary Considerations.

This series of articles will deal with procedural and statutory aspects of will contests (and contests of related trusts). Prior articles have discussed substantive aspects in detail, including the legal theories and requirements necessary to overturn a will.

Will contests are difficult and are meant to be difficult. By definition, the principal party to a will, the testator, is not available to testify as to anything regarding the will. To compensate for that absence, the law provides a number of safeguards. Every will must be properly witnessed and attested by two witnesses. The Dead-Man’s Act prevents interested parties and their spouses from testifying to anything that took place in the presence of the testator. Thus, all testimony will come from third parties. The attorney who drew the will will almost certainly testify that everything was done correctly. In sum, the effect of the formalities and the evidentiary rules is to prevent many contests that might be justified in favor of upholding the written expression of the Decedent.

In general, there are four bases on which to contest a will:

  1. Lack of proper formalities in the will or its execution. It is unusual to find such grounds, but they may be present, especially if an attorney was not involved in the process.
  2. Lack of testamentary capacity at the time of execution of the will.
  3. Undue influence by another that makes the will the product of the other party’s intent and not that of the testator’s intent.
  4. Breach of fiduciary duty either as a matter of law or as a matter of fact by which the fiduciary gains a benefit.

To win a will contest at least one of those bases must be proven.

Before taking on a will contest, you should be sure to advise the client fully of how difficult the case will likely be. Many people believe that just because they “know” or “believe” that they would not have been left out of the will, their relative/friend/other must have been incapacitated or unduly influenced. “Knowing,” even if correct, is not the same as “being able to prove,” and being able to prove is what must be done. Most clients will not want to risk substantial money in a will contest, and many wills that might be successfully attached will not be challenged.

Will contests differ from most other Probate-related litigation. Other contests often relate to documents and money, especially when it comes to accountings, Citations, fees, and the like. Will contests will deal mostly with testimony – by those who testify to a testator’s capacity or lack of capacity, to the circumstances leading to undue influence or its absence, and to the nature of the relationship between the decedent and others. It will be necessary to interview witnesses in depth and to take more depositions than usual, including depositions of medical providers and caretakers. Until significant discovery is completed, an attorney may not be able to accurately evaluate the case. Only then can an attorney determine what testimony will be admissible and if it is advisable to proceed further or to throw in the towel. Some will contests do succeed, but short of finding a “smoking gun,” they succeed after hard work and based largely upon third-party testimony. Over my first thirty years of practice, I participated in only two will contests. In the first, I represented the estate and won summary judgment dismissing the contest. In the second, I represented the contestant and wound up dismissing the case after some discovery and well before trial.

If you do consider taking on a contest, the fee arrangement with your client is critical. A contingent fee is permissible but is rarely advisable. An attorney should not attempt a contingent fee will contest unless there is a reasonable chance of success and enough of a potential recovery by trial or settlement to make the risk worthwhile. Even on an hourly fee case, the client should be prepared to spend substantial fees and costs, and an attorney should be sure that he or she will be paid for all time spent on the matter and for all out-of-pocket expenses.

©2005 by Cary A. Lind, all rights reserved.