To speak with an experienced probate law attorney, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

A 1966 Playboy cartoon depicts a will reading with the lawyer stating: "And to my faithful valet, Sidney, who I promised to remember in my will--Hi there, Sidney!" Does Sidney have any reason to believe that he might be a beneficiary under his late employer's will? Perhaps. Does Sidney have any claim against the employer's estate other than for unpaid compensation? Probably not, in the absence of an enforceable will contract.

Suppose, however, that the disappointed beneficiary is not the decedent's valet, but rather an intestate distributee of the decedent or a person named in a prior will whose share is diminished by the will in question. Suppose further that a son and daughter survive the decedent. The decedent's earlier will treated the two equally by giving each child one-half of the estate. The will offered for probate changes the dispositive scheme and leaves three-quarters of the estate to the daughter and one-quarter to the son. The son claims that the daughter used fraud and undueinfluence to induce their parent, an aged and infirm individual, to change the will. What recourse does the son have to recover what he deems to be rightfully his--one-half of the estate?

The traditional approach is to object to the will offered for probate based upon the alleged conduct of the daughter. If the son is successful (and he bears the burden of persuasion on the issues of fraud and undue influence), the probate court should deny probate of the later will and the siblings should share the estate, either under the terms of the prior instrument or through intestacy if the prior will is not admitted for probate. That would seem to make the son whole, but it does not. If, as is often the case when a will is procured by wrongful means, the daughter is the nominated executor and proponent of the will, the estate will bear the cost of defending the son's claim, including attorney's fees, which will decrease the son's ultimate recovery. Additionally, the son will be responsible for the payment of his attorney's fees.

The son may have an alternate course by which to achieve the desired result. He can pursue a remedy based on the tort of intentional interference with an inheritance.By proceeding against his sister on the tort claim, the son could seek the entire range of damages available in tort actions, including, in a proper case, consequential and punitive damages. A second possibility would be for the son to pursue an equitable action to impose a constructive trust on the property received by the daughter on the ground that she had been unjustly enriched by her actions. In either case, the cost of defending the proceeding would shift from the estate to the daughter.

The son-daughter scenario described above centers on conduct affecting a will. Normally, the probate court is charged with resolving this type of dispute. But access to the probate court for relief may not be possible if the disappointed heir does not have standing to contest the will or if the interference does not affect the terms of a will.

PROBLEMS IN SEEKING RELIEF IN THE PROBATE PROCESS

If the alleged wrongdoing centers around a will, the traditional route to relief for a person claiming to be injured is a will contest conducted in the court vested with probate jurisdiction. Whether the probate proceeding is initially ex parte or in solemn form, the ultimate questions for the court after contestants file their objections are whether (1) the testator duly executed the will, (2) the testator possessed the requisite testamentary capacity, and (3) the testator's testamentary expression was a free act of the testator and not the product of fraud, duress, orundue influence. If the court is satisfied that all the elements of a valid will are present, a disappointed person can do little more in the probate court; testators are free to dispose of their property as they see fit, subject to any rights a surviving spouse or minor children may possess. However, even if one or more infirmities affect the validity of the will, a number of roadblocks may still stand in the way of a claimant.

A. Standing to Contest

Only parties with standing to contest the will are entitled to interpose objections to the admission of a will to probate. Generally, only persons with a direct economic or financial interest in the denial or setting aside of probate have standing to contest the will. The bulk of persons with standing fall into two main classes: those who will take in intestacy if there is no probate and those who will take more under a prior will if the will before the court is denied probate. Therefore, unless our intrepid valet, Sidney, had been a beneficiary in an earlier will of his employer (or, more unlikely, an heir of the decedent), he would lack standing. But the disappointed son, who would take more under the prior will or in intestacy, would have standing to object to the will presented by his sister.

B. Statute of Limitations--Limiting the Time to Contest

A person who seeks to contest the ex parte probate of a will may be faced with a short statute of limitations. The problem may be more pronounced when solemn form probate is used because a party receiving notice must file objections prior to the return date specified in the process or notice. In either case, if the potential contestant does not discover the wrongdoing until after the time period expires and no fraud was involved in the probate proceeding itself, the potential contestant's claim will be barred. The issue then may become whether a claimant who fails to contest within the specified period, and thus is bound by the probate decree, can seek relief in another court.

C. The Chilling Effect of Anticontest Clauses

A person who attempts to procure a benefit through wrongdoing may try to persuade the testator to include an anticontest, or in terrorem, provision in the will. Normally, this provision eliminates any benefit passing under the will to a person who contests its provisions. 22Although the existence of the clause is not a legal bar to a will contest, it may work as a psychological barrier and affect the willingness of a contestant to proceed.

If the claimant proceeds, notwithstanding the anticontest provision, and is successful, the provision is ineffective to prevent inheritance by the contestant. But if the contest is unsuccessful, is disinheritance automatic? If probable cause for the contest exists, a majority of jurisdictions will not enforce the provision. For these courts, a dominant public policy opens the judicial process to meritorious claims. Restatement (Second) of Property states:

When . . . the contestant establishes that there was probable cause, there is a public interest in having the donative transfer challenged. It would be a contravention of public policy to place a deterrent upon such action. Hence, the rule of this section [upholding the validity of anticontest clauses] does not permit the risk of a forfeiture of a transfer to be imposed where there is probable cause to believe the donative transfer is not valid.

In a minority of jurisdictions, the anticontest clause is strictly enforced unless the contestant alleges that the will is a forgery, that it was revoked by a later will, or that the will benefits the drafter or a witness. These jurisdictions believe that the probable cause rule encourages litigation, including strike suits, which are directed toward coercing a settlement.

If you have any questions or would like to speak to a probate law attorney about a will, trust, or estate matter, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

For continual access to the legal world, follow us on Twitter and LinkedIn. We offer the latest updates on caselaw and legal news. In addition, informational videos are available for your convenience on our Youtube channel. 

Source: Martin L. Fried, The Disappointed Heir: Going Beyond the Probate Process to Remedy Wrongdoing or Rectify Mistakes, 39 Real Prop. Prob. & Tr. J. 357, (Summer, 2004)