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Pennsylvania Will Contests and Other Remedies to Challenge a Pennsylvania Will

Sometimes after someone has died, another person is unhappy with the terms of the now-deceased persons will. It might be an unhappy spouse, child, grandchild, another relative or a friend. What if anything, can the dissatisfied person do? The following article attempts to answer that question, in which the now-deceased person was a Pennsylvania resident at the time of her or his death.

Spouse's Election Against the Will - The unhappy spouse may have an option unavailable to anyone else - an election against the will. Unless the spouse has given up the right to elect in a valid pre-nuptial agreement, under Pennsylvania law, generally a dissatisfied spouse can "elect" to take one-third of the deceased spouse's estate instead of her or his share under the will. Generally the surviving spouse must make this election within six months of the date of death or six months from the date of probate, whichever is later, or the election is lost. Making the election can affect the surviving spouse's rights in jointly owned property, the surviving spouse's rights to receive the proceeds of life insurance, annuities, retirement plans and other employee benefits from the now-deceased spouse and the surviving spouse's rights in trusts established by the now-deceased spouse. Therefore, the election must be exercised with care after determining all its consequences. Because of the complexities involved or for other reasons, the election remedy may not be satisfactory.

Lawsuits to Enforce Debts or Other Contracts - Sometimes a person believes that he or she was "owed" something by the now-deceased person who was supposed to be covered by the will or feels that the now-deceased person "promised" her or him something while still alive. If there was a true debtor-creditor relationship, and the debt is still valid, the will is really immaterial. The creditor can sue the debtor's estate to recover the debt without regard to what is contained in the will.

If there was a valid contract between the two persons, in which the now-deceased person made a valid promise to leave the other person something through the will, a lawsuit can be brought to enforce that promise. It should be noted that not every so-called "promise" constitutes a valid and enforceable contract to make a will. A person might say that she will leave something to someone else in her will or might even tell someone that the will provides for him. That alone is not enough to create a valid and enforceable contract. However, there are situations in which such a promise is enforceable. An example might be where a person with no existing obligation, agrees to move in with an elderly person and care for the elderly person for the rest of her life, without any current compensation but in return for the promise by the elderly person to leave her house to the caregiver. Under those circumstances, there may be a valid and legally enforceable contract to provide in her will that the house will pass to the caregiver. If the caregiver fulfills his promise and if the elderly person does not provide as promised in the will, the caregiver can bring an appropriate legal action to enforce that promise.

It should also be noted however, that mere intentions to provide for someone in the will, even if expressed during a person's lifetime, do not alone form the basis for a successful claim where there was no valid contract to make a will. Under Pennsylvania law, intentions alone are not sufficient if the person does not set him or her forth in a valid signed written will. Generally, even where a person has a will prepared setting forth intended gifts, unless and until the will is signed, it is not a valid will.

Challenge to the Validity of the Will Itself - The dissatisfied person may not be a spouse who can elect against the will or a spousal election may not provide a full remedy. There may be no debt or contract to enforce. Nevertheless, under appropriate circumstances, the validity of a will might still be challenged.

Standing - Not everyone can challenge a will. The law requires something called "standing." That is, the person who asserts the challenge must have something to gain or lose. If your Uncle Joe died and left his entire estate to his new girlfriend and not to his two children, you cannot challenge your uncles will because your cousins decide not to do so. You have nothing to gain or lose from the outcome of the will challenge, therefore, you do not have standing and you cannot challenge the will.

Grounds to Challenge a Will - Assuming you do have standing to challenge the will, what might form a legitimate basis to challenge a will? You might claim forgery, lack of mental capacity, undue influence, fraud, a failure to meet the legal requirements of a will or a combination of these grounds, depending upon if there is a sufficient factual basis to support any of these arguments. You cannot properly challenge a will on any one or more of these bases, even if you do not like the will, unless the facts as you believe them at least arguably support one or more of these arguments.

  • Forgery - Did the now-deceased person really sign the will? If it can be proven that the signature is a forgery, the will might be successfully challenged.
  • Mental Capacity - Did the now-deceased person have the necessary mental capacity to understand what she or he was doing when the will was signed? A person must be of "sound mind" to make a will. Generally, the courts have interpreted this to mean that the person must understand what he is doing in making the will, must be aware of the property that he owns or controls, must understand how he wants to give it away under the will and must understand the persons he wants to benefit under the will. The fact that a person is not as "sharp" as he was in his younger days, the fact that a person cannot handle all his financial affairs for himself any longer or even the fact that a person was declared "incapacitated" by a court does not necessarily mean that the person no longer has the mental capacity to make a will. Old age alone is certainly not enough. All the facts and circumstances that existed when the will was signed must be examined to determine mental capacity. The burden of proving that a person did not have sufficient mental capacity to make a will is a heavy burden. If it can be proven that the now-deceased person did not have the necessary mental capacity, a will might be successfully challenged.
  • Undue Influence - Did someone else exert such influence over the now-deceased person that the will was really not the free action of the now-deceased person herself but was actually the action of the other person? Generally this involves proof of something like threats, coercion or misrepresentations that brought about that result. Often, but not always, it involves proof of some type of close and confidential relationship between the two people who allowed the now-deceased person to be more easily influenced. It is not every influence that constitutes "undue influence." Children, friends, etc. often try to influence the decision of someone in how to dispose of her or his estate. This was not necessarily "undue influence." It is only where the influence was so strong that it overcame the free will of the now-deceased person and substituted the decision of the other person for the decision of the now-deceased person, which rises to the level of "undue influence." There is also a heavy burden to prove undue influence. If undue influence can be established, a will might be successfully challenged.
  • Fraud - Did someone deceive the now-deceased person into signing a will that she never intended to sign? Another person might have misrepresented facts to the now-deceased person so that she was convinced to do something that she otherwise would not have done. Another person might have deceived the now-deceased person into signing a document that she believed was something other than a will. These types of fraud might form the basis for a successful will challenge.
  • Failure to Meet the Legal Requirements of a Will - Was the will prepared or signed in such a way that it was not valid, even if there was no forgery, undue influence or fraud and even if the person had mental capacity to make a will? For example, in Pennsylvania, if a document is signed but not at its "end," it may not be a valid will. The failure to meet all the legal requirements for a valid will might form the basis for a successful will challenge.

Challenging the Will - Generally, a will cannot be challenged while the person who made it is still alive. A will can be changed at any time by a competent living person. Therefore, its validity is not challenged until the person has died and can no longer change the will. After a person has died, her or his will is offered for probate to the Register of Wills in the county where the now-deceased person resided. The will can be challenged in the probate proceeding before the Register of Wills by someone with standing. If the challenge there is not successful or if the will has been successfully probated already, someone with standing can challenge the will in an appeal from probate in an Orphan's Court proceeding. Generally, under the law, there is a period of one year from the date of probate in which to appeal from the probate of the will. The exceptions to these rules, the specific facts that need to be proven to the satisfaction of the Register of Wills or the Orphans' Court Judge and the methods of asserting the challenges are beyond the scope of this article. If you have any reason to suspect that a will should be challenged, we urge you to seek legal advice as soon as possible from a lawyer who is licensed to practice law in the location where the will has been or will be offered for probate.


Copyright 2011 - 2014 Marc H. Jaffe

Note: The information set forth in this article is for general information purposes only and is not intended as legal advice. There are many related details that this article does not attempt to address. You should consult a lawyer in the state where you live or the state where the will has been or will be offered for probate, and rely on the advice of that lawyer rather than upon anything set forth above.