A will contest can be a difficult and costly legal process so the will contestant needs strong grounds before taking this step. Various issues can be used to attack a proposed will. This is a look at some of the most prominent ones and the types of evidence that are needed for proof.
Burden of Proof in a Will Contest
The contestant attempts to weaken the position of the proponent of the will by offering clear and convincing evidence to undermine important facts that would support the probate of the will. This was defined in La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963), as testimony by witnesses about the precise facts at issue that is credible, distinctly remembered, clear, direct, and weighty.
This goes beyond the usual “preponderance of the evidence” standard for the usual civil lawsuit. Such heightened scrutiny makes a will contest hard to win without careful, detailed preparation. What must be proven to this extent depends on the grounds on which the will contest is based.
When a Will Contest Might Succeed
Dating back to the 19th century, there are numerous Pennsylvania cases, statutes, and rules that have defined what must be proven to successfully attack a will. The strength of the evidence and the elements of the law must come together to provide a compelling story against probating the proponent’s will. A look at some of the more likely arguments follows.
Testator’s Capacity and Will Execution
The major issue is what constitutes mental capacity in order for a will to be seen as valid. The Pennsylvania Supreme Court consistently has defined the test for testamentary capacity as “whether the testator, at the time he executed the will in question, had an intelligent knowledge regarding the natural objects of his bounty, of what his estate consists, and of what he desires done with his estate, even though his memory has been impaired by age or disease” (from Cohen Will, 445 Pa. 549, 284 A.2d 754 (1971)).
Basically, the person needs to understand her or his ownership of property and how it should be distributed after death, even if age has decreased the sharpness of an individual’s overall memory over the course of time. As for the natural objects of one’s bounty, this often is expressed as the closest living relatives – however, knowing their identities does not mean that the testator will leave any property to them.
A will contest also focuses on capacity at a particular point in time. As stressed in Wertheimer’s Estate, a 1926 decision that remains precedential, the evidence must cover “the period immediately before, at or after [the will’s] execution.” When an alcoholic executed her will at a time when no evidence of her being intoxicated existed, the court found her will to be valid. Furthermore, in Ryman’s Case, 139 Pa. Superior Ct. 212, 218, Judge Keller emphasized that “[o]ne’s mental capacity is best determined by his spoken words, his acts and conduct.” Unless the evidence undermines the presumption of mental capacity at the time in question, events that are not contemporaneous with the will’s execution will not undermine the document’s validity.
In our society with an increasingly elderly population, we have to remember that the law does not look at such matters as physical age when determining testamentary capacity. For example, in Lawrence’s Estate, 286 Pa. 58, 65, 132 A. 786, 789 (1926), Pennsylvania’s Supreme Court stated that “[o]ld age, sickness, distress or debility of body neither prove nor raise a presumption of incapacity.” Additionally, failure of memory does not prove incapacity as long as it is not total or extended to the degree that incapacity becomes practically certain.
A Poor Memory Does Not Necessarily Equal Incapacity
A testator’s memory is not irrelevant in a will contest but its role can be overemphasized depending on the facts and circumstances involved. The Pennsylvania Supreme Court decided in Brantlinger Will from 1965 that a testator with a faulty memory still has capacity to execute a will. Other cases have stated that a complete lack of memory renders a testator incapable of executing a will. This is a matter of degree and is a reason that a will contest sometimes is necessary.
Incapacity Is Not Always Incapacity
One might think that the proponent of a will of a legally incapacitated testator is guaranteed to lose a will contest. 1964’s Lanning Will summarizes the applicable law: an adjudication of mental incapacity made prior to the execution of a will does not require the conclusion that the will is invalid for lack of testamentary capacity. Instead, one must look for the date that the will was executed. If the testator has not been adjudicated as mentally incapacitated, then the contestant bears the burden of proving this by clear and convincing evidence. On the other hand, if incapacity was determined prior to the will’s execution, the will could be valid if the testator can be proven – by clear and convincing evidence – to have had testamentary capacity of the date of execution. The will’s proponent shoulders the burden of proof here.
Eccentricity Is Not Insanity or Even Incapacity
In Higbee Will, 365 Pa. 381, 75 A.2d 599 (1950), those who brought the will contest proved that the testator was forgetful and, at times, confused and subject to rages and tantrums; that she had plenty of money but lived in poverty and filth; she was; she locked herself in her house while alone; that she refused medical attention even when she needed it; and that she was very ungrateful to people who did her favors.
Meanwhile, in her will, she left her property to an agnostic society instead of relatives. While this upset those relatives, two attorneys and a secretary of a trust company testified that she had clear and full testamentary capacity when she executed a will and two codicils. As a result, the testamentary documents survived the will contest.
This case also demonstrates that what appears to be an “unnatural” disposition does not prove an incapacitated testator. This principle is found in Morgan’s Estate, 219 Pa. 355, 68 A. 953 (1908), which states that a will is unnatural only if contrary to what a testator’s known views and intentions would be expected to produce.
Are Insane Delusions Relevant in a Will Contest?
Maybe, yes; maybe, no. Two cases from the 1950s show how the facts must be developed in order to answer this question. Duross Will, 395 Pa. 492, 150 A.2d 710 (1959) involved a testator who had insane delusions but still could have capacity to make a valid will, as long as any delusion did not affect the will’s dispositive scheme. Meanwhile, 1952’s Johnson Will, also decided by the Pennsylvania Supreme Court, stated that, when it appears that the will was the direct result of the delusion and that the will would have been different if the delusion had not occurred, then the will is rendered invalid.
Undue Influence in a Will Contest
Undue influence is a broad term that includes fraud; threats; misrepresentation; and coercion. This was summarized in Hollinger Will from 1945. It noted that, if sufficiently proven, any of these can undermine a will’s validity by prejudicing the testator’s mind, destroying freedom to act as desired, or acting as a present restraint upon the testator making the will.
Direct versus Indirect Proof
Undue influence can be proven directly or indirectly. With direct proof, the will contestant needs to show, by clear and convincing evidence, that acts which prejudiced the testator’s mind or destroyed the testator’s free agency occurred, resulting in the invalidity of the will produced for probate. In these cases, the presumption is in favor of the absence of undue influence.
However, in other cases, there is a presumption that undue influence existed. This “indirect” proof of undue influence arises in situations in which the law shifts the burden of proof to the will’s proponent, who must show the absence of undue influence for the will to be considered valid.
When is Undue Influence Presumed in a Will Contest?
The Pennsylvania Supreme Court followed a three-part rule regarding indirect proof of undue influence, leaving the will’s proponent with the burden of proving that undue influence did not exist. In Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975), the Court held that where (1) a person who is in a confidential relationship with the testator, (2) receives a substantial benefit under the will, and (3) at or around the time the will was executed the testator had a weakened mental intellect, a presumption of undue influence arises. The result is that the burden of proof shifts to the proponent to prove the absence of undue influence.
Confidential Relationships
In a will contest, a confidential relationship is considered a potential indication that parties are not on equal footing. In Leedom v. Palmer from 1922, Pennsylvania’s Supreme Court discussed such relationships and looked for “an overmastering influence” on one side or “weakness, dependence or trust” as indicators of a possible unfair advantage that leads to the presumption that a void transaction. Importantly, confidential relationships are not sufficient to create the presumption. In the 1975 decision in Estate of Thomas, which involved the probate of a will in Allegheny County, there was a recognition that a testator in a weakened state dealing with someone in a confidential relationship would result in a presumed unfair advantage. When these circumstances appear, the law presumes undue influence when the bulk of the estate is left to the will’s scrivener. Proving influence is not required to shift the burden of proof.
Various relationships can indicate the existence of confidential relationships. Kinship and marriage can serve this function; however, Aggas v. Munnell, 302 Pa. 78, 152 A. 840 (1930), specify that these relationships do not automatically equal confidentiality. A financial agent in a power of attorney has been given unequal power – if the agent is a will’s proponent, court believe that this clearly indicates there is a confidential relationship.
Meanwhile, a substantial benefit to will proponent is relevant. The previously mentioned Estate of Clark noted that a substantial benefit to a will’s proponent would establish a prima facie case in favor of the contestant. Cases have noted that no hard and fast rules exist to define a substantial benefit; instead, this is determined by facts and circumstances on a case-by-case basis. In this way, a will contest does not differ from other court actions – the situation must be investigated, with an understanding of what transpired being carefully explored before a rush to court.
Examples of Circumstances that Are Not Automatically Defined as Undue Influence
When a will’s contestant suggests that the will’s proponent being named as executor is a substantial benefit, the contestant likely will lose. Unless the will provides the power to dispose of an estate in a manner contrary to the will’s specific provisions, the proponent (and executor) reaps no substantial benefit. Attempts to persuade a testator do not pass the test. Any form of restraint of a testator must be contemporaneous with the creation of the will and, additionally, must directly affect the testamentary act. If a testator made statements that might have indicated undue influence, courts have found these to be admissible only when linked with more direct evidence for the purpose of corroboration.
For a will contest to succeed, contestants must understand what must be proven and how it can be proven in order to prevail. Unless they understand and can do this, they will fail in their objective and stand to learn an expensive lesson at the same time.
Undue Influence and Proving Fraud in a Will Contest
As previously noted, undue influence is broadly defined in the context of a will contest. As a result, it generally includes fraud as an element. However, fraud often plays an important role in a will contest so it merits being singled out.
A contestant who raises this issue must prove it directly. Pennsylvania’s Rosenthal’s Estate from 1940 established that the burden of proof does not shift so the contestant must produce clear and convincing evidence in order to prevail.
In re Paul’s Estate, 407 Pa. 30, 180 A.2d 254 (1962), dealt with fraud in the inducement regarding execution of a will. The case set forth two elements that the will contestant must prove. First, the testator had no knowledge of the concealed or misstated fact. Second, the testator would not have made the bequest had the truth been known.
A classic situation in which the Pennsylvania Supreme Court looked the possibility of fraud through nondisclosure occurred in Stirk’s Estate from 1911. This involved a testator who authorized the assistant trust officer of the Land Title & Trust Company to draft her will prior to an operation.
The will’s basic objective was to benefit charitable, educational and religious uses. However, there could be a question of the legality of these bequests if the testator died within 30 days after executing the will. As a result, the scrivener prepared a codicil to deal with the possibility that the bequests might fail and left blank spaces for who would receive the funds if she died during the 30-day period. The testator mentioned that the Land Title & Trust Company as the recipient of what were charitable bequests in the will, and the assistant trust officer from that company inserted this into the codicil for the testator.
She then executed the codicil but died within the 30 days after executing the will. The Court questioned why the codicil substituted a for-profit entity to receive the bequests that intended for charitable uses and also noted that the scrivener’s close connection to the land trust company. Additionally, the fact that the trust officer did not attempt to make sure that this drastic change was what the testator actually intended seen as very problematic. The Orphan’s Court judge called this situation “incomprehensible and almost incredible.” The high court agreed. It decided that the scrivener’s silence under this case’s facts amounted to constructive fraud and reversed the decree that awarded the fund to the Land Title & Trust Company is reversed and remitted the record for a distribution of bequest in accordance with its views as set forth in its opinion.
An Overview of Other Grounds for a Potential Will Contest
While lack of testamentary capacity and various forms of undue influence are grounds commonly raised by contestants, there are a number of additional issues that might be introduced in these cases in order to undermine a will’s validity. Among these are lack of testamentary intent; mistakes in execution; issues concerning lost wills; and forgery. These are summarized, below.
Did Testamentary Intent Exist?
The form and language of a writing are factors to be considered but are not determinative of whether a writing is a will. Instead, an informal instrument may be legally effective as a will if its language shows testamentary intent, which is indispensable to the finding that a document is a valid will. The language must be dispositive in character, and this disposition must be intended to occur after the testator’s death. Instructions and memoranda for use in drafting a will at a future time do not show the requisite intent.
Although form is not a determinative factor, it is an element which may be considered. For example, in In Re Estate of Ritchie in 1978, the Pennsylvania Supreme Court noted that the decedent previously executed a will which was not a sophisticated document but did show some knowledge of the customary form and style used for a will. When a later writing was submitted for probate, the Court gave weight to the writing lacking any elements of the customary form that the testator used previously.
The Court in Ritchie also set forth a long-standing principle that, if a further or additional act or writing is contemplated by an alleged testator in order to make a will or codicil, then the current writing is not testamentary in nature. The prior will as well as extrinsic evidence were considered in making this decision.
While extrinsic evidence is not permitted when the intent is unambiguous, the trial court believed that real ambiguity regarding testamentary intent existed so it heard testimony of individuals who were present when the second document was drafted. While it permitted the document to be probated, the Pennsylvania Supreme Court reviewed the testimony introduced by the will’s proponents indicated that the document was a list or memorandum contemplating a will that would be drafted in the future. It concluded that testamentary intent was not present and reversed the trial court’s decision.
Two years earlier, in In Re Estate of Sedmak, 467 Pa. 379, 357 A.2d 142 (1976), the Court stated that, if the instrument is in writing and signed by the decedent at the end, it must be given effect as a will or codicil when it contains a legal declaration of the writer’s intention regarding actions to be performed after the individual’s death. If there is no ambiguity of this intent, then extrinsic evidence is not admissible.
Mistakes in Execution
A classic example of this and how Pennsylvania courts approach the problem occurred in 1959’s Pavlinko Will. In 1949, Vasil and Hellen Pavlinko had their wills drafted by an attorney. The basic estate plan left the property of the first spouse to die to the other spouse. Hellen made the mistake of signing the will prepared for Vasil, who then signed the second will which was supposed to be executed by his wife. Hellen died in 1951, but no will was submitted for probate.
After Vasil Pavlinko’s death in 1957, the will that he signed was offered for probate at the Register of Wills in Allegheny County by the residuary legatee (Hellen’s brother who was identified in the will as “my brother”) named in the will executed by Vasil. Because the document stated that it was Hellen’s will while it was executed by her husband, the Register of Wills refused to accept this to be probated.
Eventually, the case went to the Pennsylvania Supreme Court. It cited Section 2 of the Wills Act of 1947, which stated that every will shall be in writing and shall be signed by the testator at the end thereof. This provision now is found at Section 2502 of the Probate, Estates and Fiduciaries (PEF) Code. The document that was to be submitted as Vasil’s will intended and purported to give Hellen’s estate to Vasil; as a result, it could not be his will but, instead, was a nullity.
The Court noted that the will would need to be rewritten in order to be probated as Vasil’s will, and it was not willing to take this action. The decision emphasized “[h]ow firmly and without exception the courts have carried out the provisions of the Wills Act, when the language thereof is clear and unmistakable” and cited other cases in which the execution of a will did not meet the essential requirements of the statute. The Court did acknowledge the seeming harshness of the result but stated that strictly following the Act was necessary in order to prevent “countless fraudulent claims” from succeeding. When someone submits a will in which mistakes in execution were made, a will contest – if the will would be accepted for probate – has a very good chance of success.
A Will Contest and a “Lost Will”
A “lost” will can be the basis for a will contest. Before doing so, an individual must understand what must be proven in order to proceed. The Pennsylvania Supreme Court’s decision in 1961’s In Re Murray’s Estate involving an unsigned copy of the will of Beatrice J. Murray provided the test for establishing the lost will’s legitimacy as the testamentary document to be probated. The necessary proof includes (1) the testator duly and properly executed the original will; (2) the contents of the executed will were substantially the same as those included in the copy of the will presented for probate; and (3) the testator did not destroy or revoke the will prior to death.
Burns v. Kabboul is a decision from Superior Court that has precedential value when a will contest centers on the status of a lost will. While the case has an interesting fact pattern, it also discusses a number of fundamental legal principles dealing with probate. It begins by noting that estate law in Pennsylvania favors testamentary dispositions of assets over intestate distribution. The policy in Pennsylvania stresses that a will should be interpreted in a way that avoids intestacy if this is feasible. To further this policy, if a later will is contested and determined to be the result of undue influence, a revoked prior will effectively is reinstated.
Burns v. Kabboul reviewed a will contest in which a lost will proved pivotal. Mae Kabboul was named the decedent’s agent in a power of attorney when he executed his final will in 1985. Kabboul was the scrivener and also was named the estate’s executor (who would receive the bulk of the residuary estate). The will was found to be a product of her undue influence and was determined to be invalid. At that point, the law of intestacy apparently would be applied to the estate, and Kabboul would inherit nothing from the decedent.
Then, Ms. Kabboul produced an unsigned copy of a will from 1982. As Pennsylvania strongly favors testamentary dispositions, there are exceptions that permit copies of lost wills to be probated. The test that shows what must be proven to overcome the presumption that a testator destroyed or revoked the lost will is set forth, above.
Kabboul was able to navigate two prongs of the 3-step test with relative ease. There was testimony from witnesses that showed proper execution of the will from 1982. The third prong regarding lack of revocation has met when the 1985 will (which was found to be the product of Ms. Kabboul’s undue influence) was invalidated. The second prong involving proof that the 1982 will’s actual contents were substantially the same as the document purported to be a copy of that will.
The problem with the copy was that the fourth page was missing. The result was that the size of the residuary estate to be received by Ms. Kabboul, again, was uncertain without knowing the provisions on page four. This was why the trial court would not accept this lost will for probate. However, the appellate court chose to attempt to follow the policy that favors testamentary dispositions and ruled that the lower court erred in not examining the document to see if any portion could be salvaged in order to prevent a total intestacy in this case.
To do this, the appellate court looked for the portions of the 1982 will that were not dependent on what may have been stated in the missing page. If possible, it would give effect to those portions so that total intestacy could be avoided. This review revealed that the bequests on the first three pages as well as clause twenty-nine on page five were for determinate sums and merited treatment as valid testamentary dispositions. Meanwhile, the missing clauses only impacted two clauses which concerned the distribution of the residuary estate; since testamentary intent regarding the residuary estate could not be determined, those two clauses were declared void. The court decided that what was apparent from the will’s terms would be subject to probate while the remainder of the estate was distributed according to the intestacy laws of Pennsylvania.
Most will contests that involve lost wills are not as convoluted as Burns v. Kabboul, but the case does demonstrate the problems that can result when old wills are not revoked and destroyed. In this case, a partial copy was at issue. Ms. Kabboul was fortunate that she was able to produce it after a later will was invalidated based on her use of undue influence. If someone else had possession, the PEF Code states what to do. In Section 3137, a party in interest can compel a person having possession or control of a testator’s will to show cause why it should not be deposited with the Register of Wills.
Forgery
While forgery is related to fraud, it is more narrowly defined so it will be discussed briefly here. In 1961’s Kadilak Will, the Pennsylvania Supreme Court stated that the will contestant must directly prove forgery with evidence that is “clear, direct, precise and convincing.” What might be considered as forgery in a will contest?
While an unauthorized signature by someone other than the testator in violation of PEF Code Section 2502 probably would be the typical answer, there are other situations in which courts have invalidated wills and codicils on the basis of document forgery. The latter variation also may be referred to as fraudulent substitution.
The previously mentioned Kadilak Will dealt with allegations of forged signatures. However, there are numerous cases in which contestants have charged others with removing pages of testamentary documents and then replacing them with more favorable pages. For example, Kane’s Estate from 1933 concerned a document bearing the decedent’s signature in which it was alleged that one page had been substituted for the original page and that another page was subjected to alteration. As this occurred nearly 100 years ago, the courts that had to decide on the will’s validity had to scrutinize what was produced by a portable typewriting machine. In the end, the Pennsylvania Supreme Court’s examination of the machine’s output was the same as that of the trial court. The document submitted for probate was riddled with evidence of forgery.
Wide latitude is permitted regarding what can be offered to prove forgery. Over the course of time, the following are among the factors used as proof: comparisons to examples of the decedent’s handwriting which are positively identified as such and were made as close in time as possible to the date of the disputed document; differences in typing; the presence of extra staple marks; differences in paper used within the document as well as differences in ink; the validity of signatures of witnesses; and the amount of time that elapsed prior to presenting documents for probate as well as explanations for the delays if concerns were raised.
A will contest is a difficult and expensive undertaking. However, if there are reasonable grounds for disputing the validity of a document offered for probate, one can succeed in such an action. The grounds alleged and the evidence in support have to be weighed carefully before proceeding to court because the party with the burden of proof must meet this burden by producing clear and convincing evidence to support each element of the cause of action.