Defending a Will Contest
Friday, July 15, 2016

In many of my previous blogs I have discussed the procedure involved in contesting a Last Will and Testament. This blog shall focus on other side of the equation, the defense of a Will contest. Since there are many facets involved in the defense of a Will contest, we shall first focus on what the named Executor or Executrix must do upon being served with a Verified Complaint seeking to contest the validity of a Last Will and Testament. For the purposes of this blog, I will assume that the Executor had already taken the necessary steps to admit to probate the Last Will and Testament of the decedent.

A Will contest is typically commenced by way of a Verified Complaint filed by the contestant which seeks to invalidate the Last Will and Testament which has been admitted to probate. For the purpose of this blog, it will be assumed that the executor had already sought to admit the Last Will and Testament to probate, and moreover, had provided appropriate notice to all heirs or potential beneficiaries of the Estate. As discussed in previous blogs, a Will contest must be filed within the relevant statutory period, which is four months for in-state residents and up to six months for out-of-state residents. Provided that Plaintiff has complied with the relevant statutory authority by timely filing the Will contest, the Executor needs to take several actions in order to respond to the complaint.

The first step an executor should take is to contact the attorney who drafted the Decedent’s Last Will and Testament. This attorney is an essential witness when seeking to defend the Last Will and Testament against a Plaintiff’s challenge. While this attorney may be involved in defending the Will, he/she cannot be the sole attorney representing the Estate as he/she is also a fact witness. Should this attorney have other members in his/her office who may serve as defense counsel, then you may retain this office to proffer the defense. If not, then you will have retain other counsel who can represent the Estate in defending the Will. The good news for an Executor as a proponent of the Last Will and Testament is that your counsel fees for defending the validity of the Will will be paid by the Estate. As such, an Executor should not have to pay out of pocket for any counsel fees for the defense of the Last Will and Testament. The only time that an executor could potentially be exposed to paying counsel fees would be at the conclusion of the matter if it was determined that the executor acted in bad faith and caused the Last Will and Testament to be executed. Otherwise, all counsel fees incurred in defending the challenged Will will be paid by the Estate.

After you have retained an attorney to help you defend the Will, the next step would be to file an Answer to the Verified Complaint. Once this has occurred, you should now commence, with the assistance of your attorney, the process of locating witness who may possess relevant knowledge with regard to the Decedent’s health and mental condition at the time that the Last Will and Testament was executed. A starting point would be the individuals who witnessed the execution of the Last Will and Testament. Furthermore, treating physicians, family, friends, or other individuals who made observations of the Decedent at the time that the Will was executed are likewise essential. It is preferable at this early juncture in the litigation to start organizing these witnesses and obtaining their information, as their importance will become very apparent during the Will contest.

After you have located witnesses who may have relevant knowledge, the next step is to start marshaling and obtaining documents with regard to assets of the Estate. Typically, the litigation attorney will assist you in obtaining information related to the Estate so that an informal accounting can be prepared with regard to the Estate’s assets. You will play an active role in this process and thus, will need to cooperate with the attorney.

As discussed in previous blogs, the main causes of action which may be asserted by a party contesting a Will are undue influence and lack of capacity. Both of these causes of action will require witness testimony, medical records, and perhaps an expert witness. The witness testimony will undoubtedly involve the witnesses discussed above, however, may also include the testimony of medical doctors, nurses, and other potential expert witnesses with regard to the capacity of the decedent. Furthermore, financial records may likewise become relevant, as well as other records related to the health and mental well-being of the decedent at the time the Last Will and Testament was executed.

Obviously, defending a Will contest is a daunting task which requires the consideration of a multitude of factors. 


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