A will can be contested in a Pennsylvania probate proceeding on a number of grounds.
- Lack of Proper Formalities. A will in Pennsylvania must be in writing and signed at the end by a testator. 20 Pa.C.S. § 2502. Pennsylvania wills are subject to the following rules and exceptions:
(1) Words following signature. — The presence of any writing after the signature to a will, whether written before or after its execution, shall not invalidate that which precedes the signature.
(2) Signature by mark. — If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed before or after he makes his mark shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.
(3) Signature by another. — If the testator is unable to sign his name or to make his mark for any reason, a will to which his name is subscribed in his presence and by his express direction shall be as valid as though he had signed his name thereto: Provided, That he declares the instrument to be his will in the presence of two witnesses who sign their names to it in his presence.
20 Pa.C.S. § 2502. Any person 18 or more years of age who is of sound mind may make a will. 20 Pa.C.S. § 2501. If a will is made in Pennsylvania without following these requirements, the will can be challenged.
- Undue Influence. A will can be contested in Pennsylvania on the grounds of undue influence. In order to prove undue influence, the contestant of the will must establish that: (1) the testator suffered from a weakened intellect at the time the will was executed; (2) there was a person in a confidential relationship with the testator; and (3) the person in the confidential relationship receives a substantial benefit under the challenged will. Once the three elements are established by the will contestant, the burden shifts back to the proponent to prove the absence of undue influence. In re Bosley.
In order to prove the absence of undue influence, a will proponent must “prove that the act or gift or bequest was the free, voluntary and clearly understood act of the [testator] and that the entire transaction, gift or bequest was unaffected by undue influence or imposition or deception or fraud.” Estate of Wiggs.
Weakened intellect is usually marked by “persistent confusion, forgetfulness[,] and disorientation.” Estate of Wiggs. When a person in a position of trust and confidence with a testator with weakened intellect receives a substantial benefit under the testator’s will, the will could be invalid on the grounds of undue influence under Pennsylvania law.
Lack of Capacity. In order to make a valid Pennsylvania will, a testator must have capacity to make the will. Under Pennsylvania law, a testator has testamentary capacity if, at the time of the will execution, “the testator has intelligent knowledge of the natural objects of his or her bounty, the general composition of the estate, and what he or she wants done with it, even if memory is impaired by age or disease.” Estate of Reichel. Testamentary capacity is determined by the testator’s condition at the time the testator executes the will, but “evidence of incapacity for a reasonable time before and after the making of a will is admissible as an indication of lack of capacity on the day the will is executed.” In re Estate of Hastings
Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.
- A will can be contested in Pennsylvania if the will was the result of fraud. Fraud with respect to a will consists of “anything calculated to deceive, whether by single act or combination, or by suppression of truth, or a suggestion of what is false, whether it be direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture, by which a person is deceived to his or her disadvantage. However, to invalidate a will, the fraudulent act must have the effect of misleading the testator, which can occur only if the testator relies on it.” In re Estate of Sacchetti. If a testator actually knew the truth at the time the will was executed, then it cannot be said that the testator relied on the misrepresentation, and fraud cannot be established. To establish that a will was fraudulently induced it must be shown that (1) the testator had no knowledge of the concealed or misstated fact; and (2) the testator would not have made the same bequest had he or she known the truth.
For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited. Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.
- A will in Pennsylvania can be contested if the testator’s signature is a forgery. “Ordinarily, forgery is the unauthorized signing of a testator’s will by another, but forgery may also arise from a fabrication of a dispositive scheme over the testator’s genuine signature.” In re Luongo. If you suspect that the testator’s signature on the will was forged or traced, you might have an action to contest the will on the basis of forgery.
- A will can be revoked three ways in Pennsylvania. A will can be revoked by:
(1) Will or codicil. —By some other will or codicil in writing;
(2) Other writing. —By some other writing declaring the same, executed and proved in the manner required of wills; or
(3) Act to the document. —By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revocation, by the testator himself or by another person in his presence and by his express direction. If such act is done by any person other than the testator, the direction of the testator must be proved by the oaths or affirmations of two competent witnesses.
20 P.a.C.S. § 2505. Therefore, if you think a Pennsylvania will being offered for or admitted to probate has been revoked by a later will, codicil, or other writing, such revocation can be grounds for a will contest.
How long do I have to contest a will in Pennsylvania?
The time to contest a will in Pennsylvania can be short. After a will has been admitted to probate, you generally have one year to appeal the probate of the will. 20 Pa.C.S.A. 908.