Before beginning a will contest, it is very important that you understand the process. If you are unfamiliar with litigation, be prepared to learn a great deal. A will contest will be a huge investment of your time, money and emotions; a marathon, not a sprint, that usually lasts more than a year and will begin with a $10,000 retainer. 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 have the funds or will power to take on the project, stop reading now, forget the will contest, get along with your life. A will contest is not for the faint of heart.
This article is meant to explain 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 a will contest cannot be brought by just anyone. A person must have “standing” in order to bring a will.
Let me explain. The courts are a busy place and if anyone on earth could walk in and challenge any will, the judges could never handle the caseload. Therefore, it was decided that only those who are a “party in interest” can bring a will contest. For example, if someone brought a will to the Philadelphia Register of Wills office, which was accepted as a valid document and the Register admitted the document into probate, could you challenge that will? The answer is, only if you can prove you were harmed in any way by that decision. If you can prove your were harmed, then you have “standing” to appeal the Register’s decision to the Philadelphia Orphans’ Court.
Ask yourself, if the will you wish to challenge is found to be invalid and is thrown out, will you then be financially better off? If so, you are an aggrieved person. Remember, if the will is thrown out then we turn to the prior will or, if there is no will, to the rules of intestacy.
Let me give you some examples. Lets 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 because you receive more under the “new” will your sister filed, you are not harmed. 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 on preliminary objections reject the petition because you lack standing.
Similarly, if under the prior will you received nothing as your father gave everything to his church, then if your brother brought a will to the Bucks County Register of Wills that excluded the church and gave your brother the entire estate, then you also do not 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 standing to contest the will, you do not.
But, 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, you have been harmed by the Register’s decision. In this situation we could successfully petition the Chester County Orphans’ Court to challenge the Register’s decision to recognize the will. We would defeat any petition filed by your stepmother claiming that you did not have 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”.
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 it is possible that the matter will be sorted out and settled in short order costing, perhaps, $10,000, but it is also possible that the person on the other side refuses to settle resulting a year later in a multi-day trial costing well over $50,000. You pay your own way during the will contest and, while it is possible that the judge will order in the end that some of those costs should be covered by the estate, you should not count on the judge making that decision.
If your opponent believes that you do not have the will power or the money to pay the costs of litigation they will be encouraged to make the process more difficult and expensive in order to get you to withdraw your petition. It is best to enter a will contest projecting a strong willingness to stick with the case until the end and with enough funds to pay the bills.
Sometimes wills contain language that states if a beneficiaries challenges the will, they are excluded in some way from the will. These Forfeiture Clauses, or In Terrorem clauses, are recognized in Pennsylvania, but are not enforced if the court finds that there is probable cause for will challenge. The odd thing is that most often these clauses are added to wills where the challenger is excluded, so has nothing to lose by challenging the will.
A will is “probated” when the executor named in the will brings the original will and an original death certificate to the Register of Wills and the Register accepts the document into “probate” issuing a decree that the executor has been officially recognized as the estate’s representative. If you come to us quickly, before the will has been accepted, there is an advantage.
Prior to a will being accepted by the Register, 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 and decide if you wish to challenge its authenticity. If you decide that you wish to challenge the offered will, we can then file a Formal Caveat, which potentially gives us a strategic advantage. The will’s proponent is not given the power to access estate funds (and empty accounts) and it allows us to do discovery in a manner that might be less costly.
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 were able to reach us prior to the Register’s acceptance and a decree being issued and we were able file an Informal Caveat (see above) followed by a Formal Caveat, then the Register will schedule a hearing. The Formal Caveat must state a case exactly 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 or you risk waiving rights or missing issues. The Register will then determine if there will be a hearing at the Register of Wills office or if the case will be immediately certified to the Orphans’ Court. If the Register decides to have 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. This Petition must be drafted properly and, if not, can be rejected or limit the scope of your appeal. Get professional advice from an experienced will contest lawyer.
With few exceptions, the appeal from the Register of Wills’ decision to the Orphans’ Court must be filed within one year of the Register’s probate decree.
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, records need be assembled and witnesses interviewed. Over time memories dim and records disappear. Quick action is usually better than delay.
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, or it will not survive a challenge from your opponent.
There are many possible basis 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. 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, a case must be presented and the judge satisfying the standards and is allowable within 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 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 attend 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 important to us!
After a few months of discovery, and getting a good idea of how many witnesses will testify and what evidence must be presented at trial, 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.
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 decision 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. We are often hired to file appeals in cases where we did not handle the trial itself. Time is an issue, so if you are considering an appeal, do not wait to 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. This is not cost effective. 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 focus on your case is truly impressive. Whatever issue you are facing, our team has the answer.
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