While still grieving the death of your mother, you receive a Notice from the Probate and Family Court informing you that your good-for-nothing brother has filed a Petition for Probate seeking to be appointed as Personal Representative of your mother’s Estate. Upon further inquiry, you learn that he has submitted to the Probate Court a Last Will and Testament allegedly executed by your mother just a few weeks prior to her death while you happened to be out of town on a college tour with your teenage daughter. The Will provides for you to receive a paltry $10 and for your brother to receive everything else, including the home where you grew up. You think to yourself, “This can’t possibly be right.” You may well be correct, but how do you go about initiating a will contest? This blog post will discuss the initial steps.
The procedure for contesting a Will depends on whether the probate was commenced via informal or formal proceedings.
An informal proceeding may be contested through the commencement of separate formal proceedings. In other words, if you don’t agree with the informal Petition that your brother filed, you may file a formal Petition seeking the allowance of a prior Will (if you are aware of one) or seeking for the Estate to be administered according to the intestacy statute if there is no prior Will.
In formal proceedings, a will contest is initiated by the objecting party filing a simple, one-page Notice of Appearance and Objection prior to the return date listed in the Citation (notice document), followed by a detailed Affidavit of Objections within 30 days of the return date. The Affidavit of Objections must set forth specific facts on which the objecting party is basing the will contest. Typical grounds may include:
- the Will was not executed properly (forgery, improper witnessing, etc.);
- there is a later Will;
- the testator did not understand that he or she was signing a Last Will and Testament;
- the testator was not of sound mind at the time of the execution of the instrument; or
- the alleged Will was procured through the fraud or undue influence of one or more named individuals.
Assuming the Affidavit of Objections sets forth enough specific detail to survive a Motion to Strike (similar to a Motion to Dismiss in civil litigation), the case will enter the discovery phase, where each party has the right to ask each other, and third parties, for various relevant documents and information to support his/her position. More on that in a later post.
Until next time!
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