When a family member is unhappy with the terms of an estate plan, they can file a will contest, also known as a “Caveat”.
Estate planning documents, like wills and trusts, are enforceable legal documents, but when the grantor who created them passes, they can’t speak for themselves. The family first learns what the estate plans contain when a loved one dies is. That is a terrible time for everyone. It can lead to people contesting a will. However, not everyone can contest a will, explains the article “Challenges to wills and trusts” from The Record Courier.
A person must have what is called “standing,” or the legal right to challenge an estate planning document. A person who receives property from the decedent, and was designated in their will as a beneficiary, may file a will contest with a written opposition, or “caveat” to the probate of the will within an allowable time, which in Maryland is six months from the dated the executor is appointed. An “interested person” may also challenge the will, including an heir, child, spouse, creditor, settlor, beneficiary, or any person who has a legal property right in or a claim against the estate of the decedent.
Wills and trusts can be challenged by making a claim that the person lacked the mental capacity to make the document. If they were sick or so impaired that they did not know what they were signing, or they did not fully understand the contents of the documents, they might be considered incapacitated, and the will or trust may be successfully challenged in a will contest or trust litigation case.
Fraud is also used as a reason to challenge a will or trust. Fraud occurs when the person signs a document that didn’t express their wishes or if they were fooled into signing a document and were deceived as to what the document was. Fraud is also when the document is destroyed by someone other than the decedent once it has been created or if someone other than the creator adds pages to the document or forges the person’s signature.
Alleging undue influence is another reason to challenge a will. This is considered to have occurred if one person overpowers the free will of the document creator, so the document creator does what the other person wants instead of what the document creator wants. Putting a gun to the head of a person to demand that they sign a will is a dramatic example. Coercion, threats to other family members, and threats of physical harm to the person are more common occurrences.
It is also possible for the personal representative or trustee’s administration of a will or trust to be challenged. If the personal representative or trustee fails to follow the instructions in the will or the trust or does not report their actions as required, the court may invalidate some of the actions. In extreme cases, a personal representative or a trustee can be removed from their position by the court.
An estate plan created by an experienced estate planning lawyer should be prepared with an eye to the family situation. If there are individuals who are likely to challenge the will, a “no-contest” clause may be necessary. Such a provision can eliminate a person from inheriting if they raise frivolous challenges.
Open and candid conversations with family members about the estate plan may head off any surprises that could lead to the estate plan being challenged.
One last note: we can’t prevent a person from filing a will contest case. Anticipating challenges and planning to avoid or at least prepare for them is what estate planning attorneys do. If it were a photo, we could help pose the picture.
Reference: The Record-Courier (May 16, 2021) “Challenges to wills and trusts.”