It’s an emotional time. A loved one has just passed away. You are struggling with the final arrangements and receiving the obligatory well-wishes from friends, family and acquaintances. You take comfort in knowing that your loved one had properly planned her estate. You believe, based on your close relationship, you know what she included in her plan.
A few weeks later, you find out that a person you barely knew is now the Executor of your loved one’s estate, and you find out that you are not an heir, as expected. After getting over the initial emotional trauma of being overlooked for a gift, you wonder to yourself, “Is this legal? Did she really want this result?”
At this point, you may be looking at a will contest, either before the Register of Wills or before a judge of the Orphans’ Court Division of the Court of Common Pleas. There are several different types of challenges to a will that may be relevant to your situation:
- Forgery - Did your loved one actually sign the will that was admitted to probate, or did someone forge the signature?
- Testamentary Capacity - Did your love one have the legal capacity to write the will?
- Undue Influence - Did your loved one have a weakened intellect and was in confidential relationship with someone that could have caused her to make changes to her estate plan?
- Fraud - Was your loved one a victim of some type of fraud that caused her to change her estate plan?
- Legal Formalities - Were all the legal formalities associated with a valid will followed?
In deciding whether to bring an action, there are several other factors you may need to consider. Do you have standing, or the right to appear before the court because of your interest in the matter, to challenge the will? How long has it been since your loved one passed? Were Letters Testamentary (when there is a will naming an executor), or Letters of Administration granted? Has any legal action been taken? Has any property been distributed? If you are successful, will you be any better off? Is the amount at stake even worth fighting over?
Once you have decided you want to bring a will contest, you have to decide who has the authority to decide your challenge. In many cases, a judge of the Orphans’ Court has the right to decide your issue, but in some cases your case is properly heard in the less formal setting of the Register of Wills. Both of these are public forums with their own rules of procedure.
As an alternative, you and the other people interested in your loved one’s estate may elect to resolve your differences out of court. If you can come to an agreement, you may need to draft a settlement agreement, and that agreement may need to be approved by the Orphans’ Court. In other cases, you may wish to hire an mediator or arbitrator to help you reach a settlement.
The benefit of these alternative dispute resolution methods, (ADR), is that the parties can reach a resolution faster than the court system, and their filings and evidence are not of public record. In the case of a mediator, a qualified individual can help facilitate a settlement by informing the parties of the strengths, weaknesses and reasonableness of their respective cases. In the case of an arbitrator, the arbitrator can make a decision that is binding on the parties. The downside to these systems is that there are no rights of appeal, and arbitrator/mediator fees can be quite substantial.
There are several types of these services. Sometimes, the parties may elect to use a national arbitration/mediation service. These groups often have qualified individuals, often experienced attorneys or retired judges, that can hear your case. They often have high administrative costs and the fees paid to the arbitrators and mediators can be very significant. In many cases, the local bar association has an alternative dispute resolution, (ADR), section that can recommend an arbitrator or mediator, or the parties themselves may know an experienced person upon whom they can agree.
Evaluating the merits of a will contest can be complex. Understanding what is truly at stake, what can be proven and who should make a decision are difficult legal questions which you should not take lightly. Make sure you speak with a qualified estates practitioner with litigation experience if you are thinking of challenging a will.
If you have questions about a will or contesting a will, please contact Donald Petrille, Jr. at (215) 345-8888 or firstname.lastname@example.org. Or contact any of our estate attorneys in Bucks or Montgomery Counties. Our Wills, Trusts & Estates attorneys provide comprehensive legal services to assist in all of these matters.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.