We regularly represent both heirs who feel they have been unfairly omitted from a loved one's last will and testament and executors who have a fiduciary duty and obligation to defend a will filed for probate. There are five basic grounds for contesting the validity of the last will and testament of a testator (i.e., the person making the will).
- Undue Influence. An undue influence challenge relates to whether the testator made a will freely without being coerced by another person or persons. For example, a family member or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that individual while excluding others who would typically receive an inheritance.
- Mental Incapacity. Will contests based upon the testator's lack of mental capacity are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator have sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by will, and (c) how his or her will disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a last will and testament.
- Inadequate Formalities. This challenge focuses upon whether the testator executed his or her will in compliance with the statutory law of the testator's domicile or the law where the will was executed. In South Carolina, a will must be in writing and signed by the testator and two witnesses.
- Revocation. When a contestant believes that the will filed for admittance to probate has been revoked by the testator, an argument for will revocation may be advanced. A will (or parts of it) may be revoked by (a) the execution of a new will or of a codicil, (b) a subsequent divorce or marriage, or (c) an express act.
- Fraud or Mistake. In rare instances, a testator may make a will premised upon a misunderstanding of, or fraud related to, the will's contents. In such cases, the contestant has the burden to prove that the testator's will did not align with the testator's intent.
A trust contest is similar to a will contest. An individual may use a revocable trust, rather than a will, to provide for the ultimate distribution of his or her assets upon death. In other instances, an individual may create an irrevocable trust during life (usually in order to avoid taxes) for the benefit of family members or charities. Like a will, the validity of a trust may be contested.
Claims Against Fiduciaries
- Fiduciary Misconduct. On occasion, beneficiaries or creditors of an estate may take issue with the actions of a fiduciary and make claims based upon the fiduciary's breach of duty, self-dealing or negligence. Such claims arise not only in the administration of trusts or decedents' estates, but also in connection with conservatorships, guardianships and powers of attorney matters. We attorneys both defend fiduciaries against which claims are made and prosecute such claims on behalf of beneficiaries and estate creditors.
- Fiduciary Removal. Beneficiaries who are dissatisfied with a fiduciary may petition a court to remove that fiduciary. We represent both beneficiaries wishing to remove a fiduciary and fiduciaries who are defending against a removal action.
- Surcharge Actions. Claims are sometimes made that a fiduciary has committed fraud or engaged in some sort of wrongdoing resulting in loss to the estate or trust. The court in such cases may surcharge the fiduciary for breach of fiduciary duty and order the fiduciary personally to make the estate, trust or the beneficiaries of the estate or trust whole. We represent both beneficiaries bringing such claims, as well as fiduciaries defending against such claims for surcharge.