If you are the named executor of an Estate, there is the possibility that an action may be brought to challenge the validity of the Will which named you executor. Typically, this process begins with a verified complaint by an individual that seeks to contest the validity of the decedent’s Last Will and Testament submitted to the probate court. The statute of limitations for contesting a Will varies by state. For example, in New Jersey, it is merely four months for in-state residents and up to six months for out-of-state residents. Provided that a plaintiff (the person challenging the Will) has complied with the applicable state deadline by timely filing the Will contest, the executor should take several actions to prepare for defending against the Will contest.
- Obtain Competent Counsel: 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 decedent’s Last Will and Testament against a challenge. While this attorney may be involved in defending the Will, they cannot be the sole attorney who represents you, as they are also an essential fact witness. As a result, another attorney must be retained to serve as litigation counsel. As an executor, the counsel fees you incur in defending the validity of the decedent’s Will are paid by the estate, and thus, the executor should not have to pay out-of-pocket legal expenses. The only time an executor might be liable for counsel fees is if they acted in bad faith or sought to use the estate’s assets to defend claims that are personal to them.
- Answer the Complaint: After you have retained an attorney, the next step is to file an answer to the verified complaint. This answer will be drafted by the attorney and submitted to you for your review and approval. In this process, you will have to present a detailed response to the allegations in the complaint and explain, specifically, why they are either admitted or denied. You will also have to swear to the truthfulness of your answers to the complaint. This part of the process must be carefully completed, as these statements will become part of the Court record.
- Locate Witnesses: In defending a Will contest, locating appropriate witnesses who can support your defense of the Will is crucial. The main claims to contest a Will often allege that the deceased was subjected to undue influence or suffered from mental or physical issues that limited their ability to properly understand and execute a Will. These types of claims involve fact witness testimony, medical records, and perhaps expert witnesses, such as medical doctors, nurses, and other health care professionals. Further, an expert witness might be retained to opine as to the mental capacity of the decedent. With the help of your attorney, you should start the process of locating any fact witnesses who may possess relevant knowledge concerning the decedent’s health and mental condition at the time that the Last Will and Testament was created and executed. A good starting point is always the attorney who drafted the Will, as well as the individuals who witnessed the execution of the Last Will and Testament. Furthermore, treating physicians, family members, friends, or other individuals who knew the decedent when the Will was executed are also important witnesses. It is never too early to start locating these witnesses and interviewing them about the substance of their knowledge.
- Decedent’s Financial Information: After you have located witnesses who may have relevant knowledge, the next step is to start marshaling and obtaining documents regarding assets owned by the decedent. Typically, the estate attorney will assist you in obtaining information related to assets owned by the decedent so that the assets and liabilities of the decedent can come into focus. Also, it would be best if you attempted to obtain any financial records that you can, such as bank statements, IRA statements, or other investment statements, as this information will undoubtedly become relevant. It is always important to understand what is at stake during a Will contest, as that will surely play a role in the intensity of the contest.
Defending a Will contest is a daunting task that requires the consideration of a multitude of factors. The earlier you get an attorney involved to assist you with this process, the greater the likelihood of success. This attorney should be able to guide you through the process of preparing a successful defense, or at the very least, give you the best chance of success. Also, this attorney should provide counsel as to when the matter should either be settled, or it should proceed to a trial on the merits.