After over 25 years of explaining the Will Challenge process, I thought it best to write this Will Contests Explained for the Non-Lawyer article. The goal is to help you come away with a good overview of the process. If you decide to move forward, our Will Contest Attorneys will explain the entire process. You will leave an expert.
This article strives to introduce Will Contests Explained for the Non-Lawyer.
Before beginning a will contest, you must understand the process. If you are unfamiliar with litigation, be prepared to learn a great deal. A contest requires a considerable investment of your time, money, and emotions, a marathon, not a sprint, that usually lasts more than a year. The end cost will depend on the facts, the evidence that need be gathered and presented, and the personality of your opponent (and of their attorney). If you don’t believe spending the funds to expose the false Will is wise, or if you feel you don’t have the will power to take on the project, stop reading now. Will contests are neither cheap nor for the faint of heart.
This article explains the elements of a will contest for the non-lawyer. For the professionals, it may seem a bit simplistic, but this is an attempt to balance the need for clients to understand this complex process without numbing them with the “legalese.”
I hope you find this information useful, and I welcome any comments, corrections, or suggestions!
Almost every day, I receive calls from people wishing to challenge a will. Most do not understand that not everyone may bring a will contest. To successfully bring a Will Contest, the proponent must have “standing.”
Let me explain. The courts are a busy place. The judges could never handle the caseload if anyone on earth could walk in and challenge any will. Therefore, only a “party in interest” can bring a will contest.
For example, if the Philadelphia Register of Wills accepted a Will as a valid document, could you challenge that particular Will? The answer is, only if you can prove you were harmed in any way by the Register’s decision. If you can prove harm, you have “standing.” Having Standing means you have the right to appeal the Register’s decision to the Philadelphia Orphans’ Court.
Ask yourself, will you be better off financially if the judge finds the Will you wish to challenge invalid? If so, you are an aggrieved person. Remember, if the judge invalidates the Will, then we turn to the prior Will. Or, if there is no previous Will, to the rules of intestacy.
Let me give you some examples. Let’s say your sister brought a will to the Montgomery County Register of Wills claiming that your father signed it on his death bed, and the Register accepted that Will into probate. In this will, you receive $20,000, but in the prior Will signed in 2011, you received $9,000, you are not an aggrieved party. You might believe that this Will is a blatant forgery, but you are unharmed because you gain more under the “new” will. If you had us file a petition to challenge the new Will as a forgery with the Montgomery County Register of Wills, the judge would reject the appeal on preliminary objections. You lack standing.
Similarly, let’s say under the prior will your father excludes you, giving his entire estate. But, after your father’s death, your brother presents the Bucks County Register of Wills a “new” will. This Will him everything. You may feel this new Will is a forgery. But, you don’t have Standing. If the Orphans’ Court were to find the Will accepted for probate invalid, throwing it out means you still get nothing under the prior Will. So while the church might have the Standing to contest the Will, but you do not.
But, what if your stepmother files a Will giving her your father’s entire estate with the Chester County Register of Wills and the Register accepts it to probate, but under the prior will you received ½ the estate? In this example, the Register’s decision harmed you. In this situation, we could successfully petition the Chester County Orphans’ Court to challenge the Register’s decision. We would defeat your stepmother’s claim that you are without Standing.
So, before starting down the path of a will contest, review your facts to make sure that you have Standing, due to you being an “Aggrieved Party.”
Should you decide to move forward, we would spend time with you on the Standing issue. Many details are beyond this Will Contests Explained for the Non-Lawyer space.
There is an emotionally and monetary cost to bringing a will contest. Before starting, make sure that you have the will power and the finances to take on the challenge.
A will contest is litigation and, if you have never been through litigation, know that it is not a pleasure cruise. There will be hearings, depositions, and monthly bills. Once you start a will contest, the matter might settle quickly costing, perhaps, $10,000. But it is also possible that your opponent refuses to settle, resulting a year later in a multi-day trial costing well over $50,000. You pay your way during the will contest. While a judge may order the estate to reimburse you for some costs, you should not count on the judge making that decision.
Your opponents may make the process more difficult if they believe you lack the will power or money. Enter a will contest, projecting a strong willingness to stick with the case until the end. Make sure they know you have the funds to pay the bills.
Sometimes Wills contain language excluding beneficiaries challengers. Pennsylvania recognizes these Forfeiture Clauses, or In Terrorem clauses, but courts rarely enforce them. The odd thing is that we find these clauses in Wills, excluding the challenger. So, if the Will gives the challenger nothing, the challenger has no fear from the Forfeiture Clause. If they lose the Will Contest, they still get nothing.
A Will is “probated” when the executor presents, and the Register of Wills subsequently accepts the original Will and an original death certificate. The Register then issues a decree officially recognizing the executor as the estate’s representative. If you come to us quickly, before the Will’s acceptance, there is an advantage.
Before the Register’s acceptance, we can file an Informal Caveat with the Register. A Caveat prevents the Register from accepting any Will unless you are first allowed the opportunity to examine the document. You then have time to decide if you wish to challenge its authenticity. If you decide that you want to challenge the offered Will, we can then file a Formal Caveat. Quick action potentially gives us a strategic advantage. The Will’s proponent now is not given the power to access estate funds (and empty accounts). Furthermore, we may pursue Discovery in a less costly manner.
Once the Register has accepted the Will, your only recourse is to appeal the Register’s decision to the Orphans’ Court.
At the Register of Wills: If you retain us before the Register’s acceptance and we file an Informal Caveat followed by a Formal Caveat, then the Register schedules a hearing. The Formal Caveat must state a case precisely like a Petition to the Orphans’ Court, so I highly suggest that you do not try to draft and file this without consulting with an experienced will contest lawyer. Inexperienced drafting risks waiving rights or missing issues. The Register will then makes a decision. The Register either holds a hearing at the Register of Wills office or certifies the matter to the Orphans’ Court. If the Register decides on a hearing, the result might be a decree to probate (accepting the Will as valid), refusing to probate the Will or a certification of the record to the Orphans’ Court for a decision.
This hearing could be your one chance to gather evidence and bring your case; it should not be considered a trial run. Your case could live or die based on what happens at this hearing.
At the Orphans’ Court: If you come to us after the Register of Wills has issued a decree accepting the Will, the only option is appealing that decision to the Orphans’ Court. Improperly drafting this Petition means rejection. Improper drafting can also limit your appeal’s scope. Get professional advice from an experienced will contest lawyer.
This is Will Contests Explained for the Non-Lawyer, so I am skipping some of the more technical aspects. We would explain these should you decide to move forward with your own Will Challenge.
With few exceptions, there is a one year limit to appeal a Register of Wills’ decision.
Strategically, though, you want to file the challenge as soon as possible. Once the Register has issued the decree, the executor has full access to the estate’s assets. It does you little good to win a will contest if the executor has lost the entire estate gambling in Atlantic City. Furthermore, you must assemble records and interview witnesses. Over time memories dim, and records disappear. Quick action is usually better than delay.
Again, this is Will Contests Explained for the Non-Lawyer so that I will skip over much of the detail.
Just believing there is something “fishy” about dad’s Will isn’t grounds for a will challenge. The Petition from probate must contain the outline of the reasoning of your challenge. Without this outline, the challenge will not survive your opponent’s objection.
There are many possible reasons for a will contest. Here are a few that I have put in order of how often they appear for cases at our office:
Once the Petition is filed and survives any challenges, the judge will set a time for Discovery. The time given for Discovery is up to the judge, but six to nine months is typical. Cases are made or lost in Discovery. Discovery includes gathering documents, records, and physical evidence. It includes depositions and interviews with clients and the hiring and preparation of expert witnesses. It includes long hours of reviewing all of this evidence, brainstorming options, and then filling any holes with even more evidence. In the end, we present the judge our case. The judge follows the Rules of Evidence.
After a few months of Discovery, we will begin to see the strengths and weaknesses in your case. Medical records will be retrieved, witnesses interviewed, and depositions held. This process is designed to make all testimony and evidence available to both sides and to encourage settlement. Once you know the quantity of evidence, you can decide if settling is a good idea or if your best option is to proceed to trial.
Unless you are being deposed yourself, there are very few hearings, conferences or depositions at which you need appear. Though you are welcome to attend, I find that most judges would prefer family members not attend (a room full of angry relatives can be unpleasant). If you choose not to participate in any part of the Discovery process, we will promptly send you copies of all relevant documents and a summary of what transpired. Keeping you updated is vital to us!
After a few months of Discovery, we will have a good idea of how many witnesses will testify and the quality of evidence. We can begin giving you estimates of how many days the trial will take. A will contest trial could be completed in one day, or it could take weeks. Further, the judge’s schedule may require the trial to be spread out over weeks or months.
A trial is without a jury. The Orphans’ Court is a niche court focused on these specific matters. They do have extensive rules, which are beyond this Will Contests Explained for the Non-Lawyer article. But, rest assured, our Will Contest Lawyers will prepare.
If you don’t care for some aspect of the judge’s decision, you have some options. First, within 20 days of the adjudication, we can file “exceptions,” which are requests to the judge to change the decision. For example, it could be clear from the conclusion that the judge overlooked testimony or misapplied a legal standard (everyone makes mistakes). If the exception does not reach the desired result, you could have us file a timely appeal.
You do not have to use your trail attorney for your appeal. Appellants often hire us, even though we did not handle the trial itself. Time is an issue. So if you are considering an appeal, do not wait long.
For more than two decades, Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and Will Contests clearly and concisely. If you are involved in Estate Litigation, our experienced Estate Litigation Attorneys will make it easy for you to understand and provide top-notch representation so you can make the best decisions for yourself and your family.
Many firms assign Estate Litigation cases to their young lawyers or a general litigator. Being that Estate Litigation is what we do, our experience allows us to focus quickly on the issues that matter. By being focused, we arrive at the most cost-efficient plan. We find the solution to your problem while the others are just warming up.
While some firms litigate, few of them have whole departments focused exclusively on estate matters. At Klenk Law, our Estate and Trust Litigators have the luxury of partnering with other lawyers from our Probate or Estate Planning Departments. The depth of experience we can apply to your case is awe-inspiring. Whatever issue you are facing, our team has the answer. This is an article on Will Contests Explained for the Non-Lawyer, but once we have educated you on the process, you will be advanced.
Our breadth of experience allows us to represent beneficiaries taking on lazy trustees and executors successfully. In the same way, we are equally skilled at protecting trustees and executors from ungrateful beneficiaries. Whether you are a fiduciary, agent, guardian, or beneficiary, our skills will best represent your case.
I intend to give you an excellent introduction to the Will Contest process. This article, Will Contests Explained for the Non-Lawyer, is just that. An introduction. If you would like to pursue a contest, please contact us to set up a free consult. It’s What We Do!
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