What happens when a will is contested?
Contesting a will means arguing that the will is not valid. Wills may be contested because someone alleges the deceased person did not have the capacity to make a will, was unduly influenced or insane, had made a more recent will or there was fraud, duress or forgery. A will can also be challenged on the argument that it contains technical flaws.
To be eligible to contest a will in Maryland, you must be an “interested party,” that is, you are named in the will or would have been eligible to inherit by law if the deceased had not left a will.
Contested wills go before the Orphans’ Court, a court established in 1777. In Carroll County today, a panel of three judges makes up the Orphans’ Court. Judges elected to the court earlier this month are Margaret “Peggy” Bair, Charles M. Coles Jr. and Donald Sealing II. In this county, judges are not required to have law degrees or any legal qualifications, although some other counties require legal qualifications. The judges’ role is to hear and decide contested cases, direct the conduct of personal representatives (executors) and pass orders necessary for administering an estate.
A person contesting a will has the burden of proof, which means he must prove that the will is not valid. Other interested parties are not required to prove that the document is valid, but they may be called to testify if they were present or involved when the deceased person had the will drafted or signed and executed it.
Challenging a will is difficult. Courts regard a will as an expression of the deceased person’s wishes, and since he is no longer here to say, “No, that’s not what I meant,” judges are reluctant to order changes in the will as written.
Note to those of us still alive: make sure your will says what you want it to say. If it does not, take the time to have revisions made or codicils — additions or supplements that modify or explain provisions in the will — added to reflect your intent accurately.
If a will is successfully contested, the estate is then treated as if the deceased had died without a will. The decision does not guarantee that the challenger will receive part of the estate. It depends on where she stands in the line of succession set out in state law for individuals who die without wills.
When someone dies without a will, priority in the distribution of his estate will be:
- Spouse and minor children, one-half to spouse, one-half to children;
- Spouse and adult children, $15,000 plus one-half to spouse, remainder to children;
- Spouse, no children, $15,000 plus one-half to spouse; remainder to parents;
- No spouse, but children, all to children;
- No spouse or children, parents or surviving parent or their children.
If none of the relatives listed exists, succession continues down through grandparents and great-grandparents to stepchildren. If there is no qualifying relative, the estate goes to the Health Department if the deceased was on Medicaid, or, if not, to the public school system in the county where he died.