Respected Will Lawyers Understand How to Proceed with a Will Contest in Maryland
Will contests in Maryland, also known as Will caveat proceedings, are unlike (and procedurally more complex than) most other civil litigation. In Maryland, a Will contest must originate in the Orphans’ Court, the probate court with limited jurisdiction. Almost all other civil litigation of significance begins in the Circuit Court which is the court of general jurisdiction. Although it begins in the Orphans Court, the trial often will be, and you may want it to be, before a Circuit Court judge or tried to a jury. Also, the petition challenging a Will in Maryland generally must be filed within 6 months of the first appointment of a personal representative under the Will. This is a short statute of limitations with serious consequences. Unlike other civil cases, the petition to caveat a Will that is originally filed cannot be amended if new grounds for the Will contest emerge during pre-trial discovery.
This article is written by will lawyers at our firm who are Maryland fiduciary litigation lawyers routinely handling Will contests, either challenging or defending Wills. The discussion of the procedural aspects of a Will contest are unique to Maryland law. Other parts of these materials, however, deal with the substantive aspects of a challenge to a Will – such as testamentary capacity, undue influence in precuring a Will, and the enforceability of no contest clauses in Will contests. Although these aspects of Will contests are written from a Maryland perspective, many of these concepts apply more generally in other American jurisdictions.
Will Contests and Testamentary Freedom
Testamentary freedom is a predominant theme of Maryland law (and, indeed, of American law as a rule). We generally can leave our property at our death as we wish. The Maryland common law provides a person great latitude to make a Will leaving his or her wealth to whomever he or she chooses and for whatever reason. One of the few exceptions to the right of testamentary disposition is the elective share statute that is designed to protect a surviving spouse from disinheritance. Otherwise there are cases that uphold Wills even if that Will seems odd or peculiar. A person largely has an unfettered right to leave his or her estate as they may deem appropriate. Essentially a Will contest challenges someone’s Will not because it is unfair or even strange but because it was a product of an unstable mind, or due to the undue influence of someone else, or for other reasons showing that it is not a product of that person’s volition.
A Will, of course, takes effect when the person making it is dead. Accordingly, the testator is not available to explain what he or she was trying to accomplish with the Will. Over hundreds of years, rules and safeguards were developed in order to give some assurance that the Will is, in fact, properly reflecting the true desires of the testator. These rules set out strict formalities that had to be adhered to in order that the Will was valid. These Will formalities were designed to supposedly safeguard that the Will was the act of the testator and not someone else imposing their desires on the testator. Violating one of these formalities can also set aside a Will even in the absence of evidence of fraud, delusionary thinking of the testator, or other factors that would mean that the Will did not reflect his or her true testamentary intent.
Will Contests Based on a Failure to Follow Basic Will Formalities
Under the statutory and common law of Maryland, the core formality or requirement to create a Will is that the Will must be in writing signed by the testator and witnessed by two individuals. The two witnesses must sign in the presence of the testator. This requirement was meant to assure that the Will was in fact signed by the decedent. Although seemingly simple, there are numerous cases where this prerequisite was not followed and therefore the Will was ineffective. Because whether Will formalities were followed may not be certain until pretrial discovery has occurred, most Will contest petitions will allege that the formalities were not followed.
The rule requiring that the witnesses be “present” with the testator when they sign as witnessing the Will was developed hundreds of years before anyone conceived of the digital age. Recently, a few states have adopted Will requirements that permit electronic Wills. The Maryland statute governing Will formalities states that if a Will was executed outside the State of Maryland it will be honored if it meets the requirements in the jurisdiction where it was executed. This presents a potential issue because at least one of the jurisdictions adopting a digital Will statute purports to have the person executing the electronic Will being deemed a resident of the state regardless of where he/she actually resides. The Maryland law has recently been changed to require that the witnesses physically be in the same location as the testator. It remains to be seen whether Maryland will honor a Will deeming a testator not physically present in such a state somehow present there anyway as valid.
“Wholly digital legal documents are a fact of modern life. Real estate contracts, for example, generally are executed by the buyer and seller affixing electronic signatures on a digital document sent to the parties by a realtor or other person facilitating the sale. Unless Maryland adopts legislation to permit digital/electronic Wills and establish rules meant to safeguard its integrity, an electronic Will is problematic. If someone types out a “Will” on a tablet and electronically “signs” it and has 2 witnesses sign it in his/her presence, is that a valid Will? Unless and until Maryland adopts an electronic Will statute, its validity would need to be adjudicated,” says Fred Franke, a principal of the Maryland estates and trusts law firm of Franke Beckett LLC.
Will Contests Based on the Lack of Capacity and Undue Influence
Will contests often allege a lack of testamentary capacity, the exercise of undue influence on the testator, or both. A Will is not valid in Maryland if the person signing the Will lacked testamentary capacity. This is a very low bar, defined as the fundamental ability to understand the nature of his/her property in general, the identity of the natural objects of his/her bounty, and what the Will is accomplishing in relation to the assets and the beneficiaries.
Although it is relatively rare for a Will to be set aside based solely on the lack of capacity, diminished capacity and lowered cognitive ability are often elements of undue influence cases. Under the common law of Maryland, a Will is not valid if it is a product of undue influence. Undue influence is when some other person has forced himself or herself on the testator and had the testator make a will or other property transfer for that person rather than what the testator would have wanted. Most cases involve a mix of capacity and undue influence. A person who has cognitive disabilities and is failing in his or her health is highly susceptible to undue influence. Also, vulnerable adults often rely on people to assist them in their financial affairs and most people can use the influence that they have to gain favorable treatment in a Will. Although the absolute lack of capacity is not the most common basis for setting aside a Will, the issue of capacity almost always is involved in cases involving undue influence.
Proving Undue Influence in Will Challenges
“Usually there is not going to be direct testimony of undue influence, so the case will have to be proved by circumstantial evidence. Generally, you want to establish the presence of a confidential relationship, that the person perpetuating the undue influence received a substantial or disproportionate benefit, that there was an opportunity to exercise undue influence, and there was a high susceptibly to undue influence. The high susceptibility element often relies on medical records and the testimony of those who can attest to the physical and/or mental state of the testator,” says Jack Beckett, a principal of the Maryland estates and trusts law firm of Franke Beckett LLC.
If the case involves setting aside a lifetime gift by someone, the presence of an confidential relationship shifts the initial burden of proof to the person receiving the gift. Unlike the situation of lifetime gifts, however, the fact that there is a confidential relationship does not shift the burden to the person receiving the gift under a Will. A confidential relationship, however, is a factor in determining whether there was undue influence exercised in receiving a gift under a Will. Other factors involve the cognitive ability of the decedent. After death, of course, the decedent cannot be examined (although an autopsy may produce good results or no useful results) but medical records should be obtained and examined by an expert who may be used at the trial.
Other Grounds for Setting Aside Wills
Under the common law of Maryland, a Will can be invalidated if it was the product of an insane delusion of the testator. This type of case is rare because it can be difficult to show that the will was the product of the insane delusion. Under Maryland law, Wills also can be set aside if it was a product of a fraud perpetrated on the testator. A classic example of this sort of case is where someone puts a document in front of the testator and leads the testator to believe that the document is not a Will but some other instrument.
The Procedure for a Will Challenge in Maryland
A Will challenge in Maryland must be filed prior to the expiration of six months after the first appointment of a personal representative under a Will. Because the deadline for filing the petition is so short, often as discovery proceeds other elements not apparent when the petition was filed may be unearthed. Regardless of what is discovered after the petition is filed, the petition may not be amended after the six month period. A few states permit an extended statute of limitations for filing a petition of caveat and provide for certain pre-petition discovery in order to flesh out the facts. Maryland does not have such a statute. Therefore, it is the practice to allege in the initial petition all conceivable bases for the Will challenge: (1) it fails to follow the Will formalities, (2) the testator lacked of testamentary capacity, (3) the Will was a product of undue influence, (4) the Will was a product of an insane delusion, and (5) the Will was a product of fraud.
During the litigation of a Will contest, the parties will engage in discovery. The discovery is usually wide-ranging: securing medical records to unearth potential diagnoses of dementia; interviewing or deposing witnesses, including the witnesses to the Will to discover whether the Will formalities were followed; deposing other witnesses including the person alleged to have exercised undue influence, and the like.
The Impact Of No Contest Clauses
Some Wills contain no-contest or in terrorem clauses. No-contest or an in terrorem clause is a provision that disinherits an individual if that individual challenges the Will. These clauses can be effective ways to tamp down the potential for Will challenges. To be effective, however, a sizeable bequest must be left to the person that the testator may believe would challenge the Will. Often this is counter to the testator’s wishes. In Maryland, an in terrorem clause will not be enforced if there was probable cause to file the challenge at the time it was filed.
As noted, when filing a petition to caveat one should claim all the bases for invalidating a Will. The reason for this is that as a case unfolds and discovery takes place other bases for a challenge may appear through usual discovery methods. As Maryland estates and trusts litigators, we have found cases where we began with the strongest case on undue influence yet after discovery found that the testamentary formalities were blown and that became the major theory of the lawsuit. This highlights the dilemma of filing a suit if there’s a no-contest clause and balancing the desire to challenge against proceeding before knowing all of the facts. If there is not a no-contest clause in a Will, of course, this is not a consideration. One should never, however, file a frivolous lawsuit so there must be a solid basis for bringing a lawsuit.
Moving a Will Contest to the Circuit Court
Will contests are brought initially in the Orphans’ Court but often end up being transmitted “on issues” to the circuit court for a trial by the circuit court or by a jury making determinations of fact in the circuit court. When someone files a Will contest, there may be additional lawsuits that the individual could file, like a cause of action to reverse transfers during lifetime and/or to reverse pay on death or jointly held property designations that were created by the same wrongdoer. That is the most common reason to transmit on issues. Another reason for a decision to transmit issues is to avoid giving the opposing party a “sneak preview” of your trial strategy. There is a right to a “de novo” appeal to the Circuit Court from an Orphans’ Court decision. Thus, the losing party in the Orphans’ Court can secure a complete “do-over” after losing and start afresh in the Circuit Court. This right of appeal may drive a decision to transmit issues.
Our Maryland Will Contest Lawyers Can Help
The Maryland will lawyers at Franke Beckett LLC understand the process involved in will contests in Maryland and we are prepared to handle your case in bringing or defending a will contest. Some firms have a broad focus – ranging from divorce, auto accidents, negligence cases, DWIs and other criminal defense cases. We do not. For over 35 years, the law firm of Franke Beckett LLC has concentrated on the law of fiduciaries and the law of estates and trusts. We have experience in a wide variety of fiduciary litigation. We handle will contests and challenges to trusts, cases involving life-time transfers or changes to beneficiary designations based on a lack of capacity, undue influence, or abuse of a powers of attorney. We try cases involving personal representatives and trustees abusing their fiduciary duty to beneficiaries. As fiduciary litigators, we also handle the suits against directors or general partners abusing their fiduciary duty in family, closely held businesses.
On a regular basis, we try cases before the Orphans’ Courts and the Circuit Courts of various Maryland counties in Central Maryland and on the Eastern Shore. We also take appeals to the Court of Special Appeals and the Maryland Court of Appeals. We have deep experience in, and knowledge of, the Maryland law fiduciaries and the law of estates and trusts. Firm-wide, we concentrate on all aspects of estates and trusts: fiduciary litigation, planning and administration. In order to schedule a consultation with an experienced Maryland will contest lawyer, or for any other matter within our practice area, call 410-263-4876 to get in touch with our Annapolis office.
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