Legally Speaking: Contesting the probate of a will

Legally Speaking: Contesting the probate of a will

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My brother Joe died recently. At the time of his death, Joe was living in a house that has been in the family for generations. When my father died, Joe inherited the house. It was understood that he would eventually pass it on to me, his only surviving sibling, or to his children so that it would remain in the family. Instead, Joe has left the house to a woman with whom he has been living for the past five years. She has no relationship with the family.

THE QUESTION: Can Joe’s children and I contest the will to prevent the house from passing to a nonfamily member?

THE ANSWER: Whether a person can object to the probate of a will depends on two factors: whether the person has standing (the legal right to object to the probate of the will) and whether the person has a legal basis for objecting. 

A person has standing to object to a will only if the person would inherit from the estate if there was no will. That, in turn, depends on the relationship between the person and the decedent and whether there are people alive whose relationship with the decedent takes priority. 

The intestacy statute, which governs how an estate is distributed when a person dies without a will, sets forth the classes of people who are in line to inherit in their order of priority. Since Joe’s children are alive and have priority over you under the statute, they have standing to object to the probate of the will but you do not.

As for a basis for objecting to probate, there are three grounds for challenging the validity of a will. They are improper execution of the will, undue influence over the testator and lack of testamentary capacity. 

If the execution of the will was supervised by an attorney, there is a presumption that the required formalities were followed. However, if the will was not signed by the testator in the proper place in the presence of suitable witnesses who were advised that they were witnessing the execution of a will, that presumption can be rebutted. The issue of improper execution is more common when there is no supervising attorney present when the will is signed. 

Unlike improper execution, the other grounds for challenging the validity of a will, undue influence and lack of capacity, both address the mental fitness of the testator. Undue influence may exist when the testator is easily manipulated or persuaded by someone who pressures the testator to make certain bequests. 

Lack of testamentary capacity may be established with proof that the testator was notably confused about and/or unaware of what he owned, who his relatives might be and/or the consequences of the bequests made in his will. Both undue influence and incapacity are difficult to prove, especially if years have passed between when the will was executed and when it is offered for probate. 

If Joe’s children suspect that any of the grounds for a will contest that are discussed above exist, they should consult with an attorney with experience in estate litigation. The attorney should be able to evaluate the situation and give them some sense of whether they should proceed with a will contest. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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