Contesting a Will

After a will has been executed and implemented (after death) under Maryland law, it is still possible for an interested party to contest that will. In Maryland, contesting a will occurs in a “caveat proceeding.” In this proceeding an “interested party” can make a case against the enforcement of the will. This process is complex, time-consuming, and has very important consequences.

First, in Maryland, a “caveat proceeding” takes place in the Orphans’ Court, which is this state’s probate court. Probate court has the jurisdiction to deal with probate and the administration of estates. Probate is the legal process whereby a will is “proved” in a court and accepted as a valid public document that is the last testament of the deceased. It is the first step in administering the estate of a deceased person including resolving all claims and distributing the deceased person’s property under the will. In most instances, after the death of the testator, the will and a petition for probate will be filed with the Orphans’ Court. Once the Orphans’ Court has determined the validity of the will, then it will issue a document called the “Letters of Administration” to the executor who will then administer the estate.

In contested matters, probate courts examine the authenticity of a will and determine the legal validity of the testator’s (a person who dies leaving a will or testament in force) will. If the court finds the will is valid then it will grant probate to the executor/personal representative.

It is important to note in Maryland that a petition to “caveat a will” (contest a will) must be filed within six months following the first appointment of a personal representative under a will but can be filed as early as three months after probate. However, it is possible for a petition to “caveat a will” to be filed prior to the filing of a petition for probate with the Orphans’ Court. If the petition to “caveat” the will is filed either before the filing of a petition to probate or after administrative probate (after the Letters of Administration are provided to the executor) then the petition has the effect of a request for judicial probate. Judicial probate occurs when the Orphans’ Court reopens the issue of the validity or authenticity of the will in question.

In order to contest a will in a “caveat” proceeding in Maryland, you must have standing. The standing requirement can be fulfilled if you are an “interested person.” This requirement must be met before the court will allow a “caveat” proceeding to occur. Case law has defined who is an “interested person” in Maryland. If you have been named a beneficiary in a previous will or if you would have inherited under the law had your loved one died without a will, then you may qualify as an “interested person”. If there is no will, the intestate laws of Maryland determine the distribution of probate assets and if you qualify under these laws then you are an “interested party.” There is a hierarchy to determine who is an heir. The spouse and children, if they have survived the deceased, will always be interested parties. Children out of wedlock are interested parties if the paternity was legally established under Maryland law. If there is a spouse but no living children, descendants are considered “interested parties.” Descendants could include grandchildren or great-grandchildren. If there is a spouse but no living children or descendants, parents are considered “interested parties.” If no spouse, descendants, living children, or parents, siblings are then considered “interested parties”. If no spouse, children, descendants, parents, or siblings, the next closest relative would be an “interested party.”

The final step is proving in the “caveat” proceeding to the Orphans’ Court that the will is invalid. There are only a few legitimate reasons for invalidating a will and just being unsatisfied with the will is not enough. There are several legal conditions that must be followed for a will to be valid including: it must be in writing, it must be signed by the testator or by someone else in their presence with their permission, it must be attested and signed by two credible witnesses, and the testator must be at least 18 years old and legally competent at the time of the signing. If one of these conditions is not met, such as if the witnesses were not really present or were not credible, then you may have valid grounds for challenging the will.

There are other legitimate reasons or grounds for invalidating the will including undue influence, mental impairment or incompetence, a newer will exists, fraud or forgery, or duress. Undue influence is basically any act of persuasion that overcomes the free will and judgment of another including exhortations, flattery, trickery or deception. The general factors for undue influence include: (1) another person influenced the testator in making the will, (2) the effect of the influence was intended to overtake the testator’s mind and intent, and (3) it produced a will that would not be the testator’s intent absent the influence. The interested party contesting the will has the burden of proving undue influence occurred at the time the will was created and that the undue influence affected the outcome of the will.

Incompetency is another potential invalidating factor. The testator must have been of sound mind and judgment to understand that he or she is making a will and what property is included in that will. The standard of incompetency in terms of will creation is lower than incompetency standards for standing trial or contracting. Several examples of incompetency include: suffering from a delusion, dementia, Alzheimer’s disease, or any mental disorder affecting the ability to understand action. Mental competency must be present at the time the will is drafted. The testator needs to have the mental capacity to understand the nature of the actions taken to draft the will. The interested party contesting the will has the burden of proving incapacity at the time the will was created and that the incapacity affected the outcome of the will.

Some other miscellaneous grounds for invalidating the will include fraud or forgery, a newer will, or duress. Fraud or forgery occurs when the document was a complete fake or if the person tricked the decedent into signing the will. If a will is located which you believe to be newer than it can be used to invalidate the older will. Duress occurs when someone intentionally uses force or threat of force to coerce another into a grossly unfair translation.

Contesting a will can be a complicated process but it is manageable. Contact Fred Antenberg for a free initial consultation and for further advice regarding contesting a will or protecting against a “caveat” proceeding by calling 410 730 4404.