Will Contests – Part 3

Procedural Dilemmas And Issues.

It is the executor’s duty to defend a challenged will at the expense of the estate (Section 8.1(n)). If the executor refuses to do so, the court will appoint a special administrator to defend the contest. In many cases, the plaintiff, even if he is successful, will be paying not only his own attorney’s fees but also a portion of the estate’s fees (to defent against him!). There is an exception where an executor knows or should know that a will is invalid or that if found invalid, an appeal will change the result. Except for that limited exception, the plaintiff should anticipate a vigorous defense from the estate.

The duty to defend the will can lead to all kinds of unlikely scenarios. Assume that a will is filed with the clerk of the circuit court naming the client as executor. Assume further that the client wishes to challenge the will because it gives the entire estate to a third party who unduly influenced the testator. Assume that the Estate has adequate assets to pay all of its expenses and that there is enough left over to fight about. Obviously, the client cannot act as executor. What kind of petition may then be brought to open the estate? If the client petitions for Probate of the will, he must allege that he believes that the will is the last will and testament of the decedent. That admission prevents him from of later filing a will contest, so the client cannot so petition.

What can be done? One possibility is to find a third party such as a creditor to open the Probate and seek appointment. Presumably, a creditor does not care who ultimately takes the estate so long as the claim is paid. If the estate has adequate assets to fight, a creditor may cooperate. However, it may not be economically reasonable to do so. What if instead the estate is of only nominal value but may have prospects of recovering significant sums through Citation proceedings or other litigation? Will a creditor be willing to fund a marginal estate? Will a creditor be willing to pay for a special administrator to oppose the creditor’s own claim? Will the creditor fund other litigation as well? The creditor may even impair its own rights if too much is spent on attorney fees and costs to defend the will. May the client fund the creditor’s administration of the estate? That is collusion and could jeopardize the proceedings. Is the client allowed to loan the estate money in order to allow a creditor or special administrator the resources to defend the will contest against him in order to allow the challenge? If so, the client has an incentive to limit the available funds in order to gain an advantage. This situation is fraught with procedural, legal, and economic difficulties. Numerous issues may arise including conflicts of interest, collusion, “friendly” representatives, and more. Taking all of these issues into account, there may not be any third party willing and able to assume the duties and financial responsibility of acting as representative.

The client may be the only one left to act. The most practical answer is for the client to petition for letters of administration and say that the decedent left no “valid” will. That is truthful. However, if a will has been filed with the clerk, it is potentially misleading to the court for the petitioner to ignore the filed document. Once filed, the petition for administration puts the undue influencer on the spot to counter-petition for letters testamentary, to let the estate go forward as intestate, or to advise the court of the filed will in order to gum up the proceedings. If the court then refuses to hear the petition for administration and instead insists on someone petitioning for admission of the filed will and if no one is willing to do so, then what?

There may be no good “answers” on any of these “issues”. This scenario puts a series of practical and procedural barriers in the path of a client who may have a legitimate will contest. These logistical challenges illustrate only some of the variations that may or may not get you and your client into a procedural posture to properly begin to challenge a will. In each case, the circumstances must be thoroughly analyzed before proceeding.

Formal Proof Of Will.

A second procedural issue is whether a party should first request formal proof of will. In most cases, doing so will give you a free look at what went on at the execution of the will. The proceeding will rarely yield any vital information, but more information is almost always better than none. Except for some limited additional fees and the cost of the court reporter, the proceeding affords a preview of some of what is to come. In some cases, it may be clear in advance that doing so will not be worthwhile. If it is apparent that the attorney who prepared the will was competent and ethical, he or she may not have been aware of any undue influence or even the lack of capacity if well-hidden by the testator. It may be better to save the fees for the contest itself.

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