Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Saturday, January 26, 2013

Article on Will Contests

Joyce-moore-20100428-105041Joyce Moore (Shareholder, Langley & Banack, Inc.) recently published her article entitled Will Contests: From Start to Finish, 44 St. Mary's L.J. 97 (2012).  Here is the introduction to the article:  

The focus of this Article is primarily on the practical problems facing attorneys and courts when evaluating and proving up a will or trust contest. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation.

Threshold evaluation questions are the first issue this Article addresses. Section II explores these requirements, such as whether a potential contestant has standing, “unnatural dispositions” of estate property, recognition of “no contest” clauses, burdens of proof allocations, and other practical problems facing potential contestants. In sum, section II of this Article raises and addresses issues related to getting into the courthouse doors for a will or trust contest.

Section III takes the next pragmatic step in addressing potential grounds for will contests. The section does so by providing an in-depth analysis of the statutory requirements for a valid will, the issue of insane delusion, the requirements of testamentary capacity, and the possibilities of undue influence. Section IV further addresses the always-pertinent question of jurisdiction. Further, this section outlines the general rules of Probate and Trust Code jurisdiction.

Following the jurisdictional questions, section V addresses venue in probate and trust matters.

Section VI provides an important pleading checklist for practitioners. The checklist can act as a guide to ensure pleading defects do not arise. Section VI also makes note of “citation” and “notice” rules while also addressing various other points of interest that are vital to successful will and trust contests.

Section VII examines special discovery tools as outlined in the Probate Code that are crucial to the preparation of either side of a will contest. These tools include the use of a demand for delivery of a will, potential waivers, and pre-death filing of wills.

The next section addresses evidentiary issues that plague practitioners in will contests. The section not only addresses these issues, but also provides efficient ways to resolve many of the complex problems.

Building off section VIII, section IX focuses on pre-trial evidence rules, evaluating motions in limine and pre-trial conference orders, and the benefits of these proceedings for will contestants.

Section X addresses summary judgment rulings. The section lays out how to keep the summary judgment in perspective, the varying types of summary judgments, and effective responses to opposing parties' summary judgment motions.

Section XI touches on proponent's counter-attacks to will contests; some of these counter-attacks include utilization of the tort of tortious interference with inheritance rights, malicious prosecution, and more.

Section XII provides the practitioner with guidelines to make the most of the document execution process. While no process is perfect, these tools can potentially mean the difference between a probate litigator's dream and an estate planner's nightmare.

In summation, this Article strives to raise pertinent issues in will and trust contest litigation, provide pragmatic approaches to these issues, and thus provide guidance in handling these often-complex problems.

http://lawprofessors.typepad.com/trusts_estates_prof/2013/01/article-on-will-contests.html

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