If you believe someone’s last will and testament is invalid or the result of some wrongdoing, you may have the right to contest it.
Here are the basic steps.
Have a proper basis to contest the will.
You can’t contest a will simply because you don’t like what it says. A testator (person who purportedly signed the will and whose estate it distributes) of sound mind has generally a right to leave his or her estate to anyone, subject to certain rights of others such as the surviving spouse.
Pennsylvania law allows a will contest only on certain recognized grounds. Some examples are:
- Forgery – the testator didn’t actually sign the will. Rather, the testator’s purported signature on the document was forged.
- Fraud – the testator thought he or she was signing something else, or didn’t realize the contents of the document when it was signed.
- Improper execution – the law requires certain technical requirements, such as signing at the end of the document. Failure to meet those requirements may form the basis for a proper contest. In one famous Pennsylvania case, the testator signed a pre-printed will form near the beginning, where his name should have been typed or printed (“I, George Glace, … do make and publish this my last will and testament …”) and the will was found invalid.
In cases of improper execution, the probate office may refuse to accept it in the first place, even if no one has contested it.
- Undue influence – this is by far the most common basis for contesting a will. It arises when someone in a confidential relationship (caregiver, close family member, etc.) to a testator of weakened intellect receives a substantial benefit in the challenged will. You can learn more details about this type of claim here.
Have “standing” to contest it.
Not just anyone can contest a will. Only someone who stands to benefit if the will is found invalid may bring an action to contest it. For more details on the issue of who can contest a will, click here.
File the right paperwork.
There are two ways to challenge a will in Pennsylvania.
First, you can file what’s known as a “caveat” with the Register of Wills in the county where the testator resided at the time of death. A caveat is a protest to the probate of the will, and will hold up probate of the will until the issue is addressed. (Probate is the formal process by which the estate of a deceased person is administered.)
Second, you can appeal the decision of the Register of Wills to recognize the validity of the will and to open the estate. Once an appeal has been filed, it is then necessary to file a petition detailing the reasons for challenging the will. Notice of the appeal and petition must be given to all interested parties, who will have an opportunity to be heard. The proponent of the will must answer the allegations of the petition.
Don’t miss the deadline.
The required paperwork must be filed timely.
A caveat works to hold up probate of a will only if filed before the will is filed. An appeal from probate must be filed within a year of when the will is filed with the Register of Wills. The court also has discretion to reduce the period of time in which to file an appeal.
For more details on time limits, click here.
How the case gets prepared and decided.
Once a will challenge has commenced, and the parties have filed papers setting forth their initial contentions, they usually engage in a period of “discovery.” Those involved in the proceeding may file formal questions known as “interrogatories” on another party, take depositions of witnesses, and subpoena documents (such as medical records) from other persons or entities. The process of discovery allows the parties to gather the information and evidence they can use to support their positions at trial.
A judge of the Orphans’ Court (a division of the Court of Common Pleas) of the county where the action was filed hears and decides a will contest. A jury may also hear the case, but the jury’s decision is only advisory.
Contesting other transfer (trusts, beneficiary designations, etc.)
Sometimes you can be cheated out of your inheritance because someone persuaded the deceased to transfer property by way of a trust, by changing beneficiary designations on insurance or financial accounts, changing accounts into joint ownership, or similar means.
These transfers can also be contested. The process for most transfers is quite similar to that of contesting a will. Click the following links to read other blog posts on contesting transfers.
Consult legal counsel.
If you believe you have reason to contest a will, consult competent legal counsel about the merits of your case. While the services of a lawyer are not required, you are more likely to have your rights vindicated with proper representation.