Caveat, Guardianship, & Will Contest Litigation

Will Contest

There are several reasons someone may want to litigate over a probate issue. Some common issues include:

  • Different interpretation of the language in a will
  • One may contest a will arguing that it is the product of someone exerting undue influence, the person did not have the mental capacity to make the will at the time it was made, or the will failed to meet all the required formalities.
  • Removal of the personal representative (or executor), because that person is not fulfilling his or her duties under the will and/or the probate law
  • To recover jointly held assets in the estate in the hope of having those assets more fairly distributed
  • Bring or defend a caveat or will contest in the Courts of Maryland

An issue may arise in cases where there is a “no-contest” clause within the will. Such a clause usually states that if an individual named in the will challenges that will, the individual will lose rights to receive under the will. While these clauses are common, it is important to understand that courts narrowly construe such clauses. Therefore, these clauses are usually not enforced if a contest is brought in good faith.

The grounds for a trust contest are similiar to a will contest except that the testamentary instrument at issue is a revocable living trust instead of a will. Trust litigation involves the breach of trust by a trustee who violates his or her fiduciary duties owed to other beneficiaries of the trust. The probate code list may specific duties owed by trustees to beneficiaries. The breach of these statutory duties constitutes a breach of trust. In some cases trust litigation involves removal of the fiduciary by some other beneficiary. It may also seek the surcharge of the fiduciary who has inappropriately taken money or property.

Two primary reasons for a Maryland Will Contest or Maryland Probate Litigation are lack of mental capacity and undue influence. As long as a person has mental capacity also known as testamentary capacity – generally knowing what they are doing and who their natural heirs are and not being coerced or pressured into making certain provisions the testator or person making the will can provide for anybody they want for any reason they want.

Undue Influence means that the testators mind was so controlled by persuasion, pressure, or coercion by the actions of another that he or she did was unable to act voluntarily but the will became the document of the person provided the influence and to the point it is no longer considered a matter of free will and the testators desires it is called undue influence and not permited. At the time of execution of the document if testator does not have mental capacity, is subject to undue influence or the document is forged it will not be valid according to Maryland law.

Our estate litigation attorneys have decades of legal experience and are pleased to assist clients involved in a will or trust dispute. We handle all phases of will and trust disputes including pre-claim demands, negotiations, mediation, arbitration and trial. We represent clients throughout Maryland including Rockville and Montgomery County, Maryland. If you need help with estate, will contests, caveat or trust litigation or would like to talk more about how we can help, you can contact attorney David C. Merkin of Merkin & Taylor, LLC at 301-762-9200 or