The probate and estate administration process by their nature occur at a difficult time. The individuals involved have recently lost a loved one and are trying to adjust. In addition, the death of a loved one may intensify already challenging family relationships. It is not surprising that disagreements develop during the process. Not only are emotions raw, but the parties involved also often have conflicting interests that can lead to will contests, conflicts with the fiduciaries, and other types of litigation.
A will contest is a lawsuit designed to invalidate a will. Typically a will contest is initiated at the beginning of the probate process when the will is filed with court and a request is made for it to be admitted to probate. The only people who have the legal standing to challenge a will are beneficiaries named in the will that is being challenged, beneficiaries of a prior or later will, or the decedent’s intestate heirs.
Valid reasons for contesting a will include lack of testamentary capacity, undue influence, improper execution, or duress.
- Lack of testamentary capacity. Testator was less than 18 years old or was mentally incompetent when they executed the will. Mont. Code Ann. § 72-2-521.
- Undue influence. Illegal manipulation that took away the testator’s free will in making the will.
- Improper execution. The will was not properly signed or witnessed. Mont. Code Ann. § 72-2-522
- Duress. The testator was forced to make the will.
Note that not only must the objectant allege legally acceptable grounds for the objection, the objectant will have to produce evidence compelling enough such that the judge determines that the will is not valid.
If the will contest is successful and the judge invalidates the will, the decedent would be intestate. However, if another will is produced that is determined to be valid, then that will would be admitted to probate. If the will contest is unsuccessful, the process will move forward with the will that was originally submitted.
Breach of Fiduciary Duty
A personal representative is a fiduciary and as such owes a duty of loyalty and honesty to the estate. They must perform their responsibilities with the utmost care and with the best interests of the estate in mind. Common reasons for fiduciary litigation include:
- Improper investment of estate assets
- Failing to follow the law or an order of the court
- Unauthorized self-dealing
- Accounting disparities or failure to account
- Wasting estate assets
If the court finds that the personal representative breached their duty, they could face being suspended, losing their commission, and being held personally responsible for any losses the estate suffered.
Elective Share Disputes
An “elective share” is an option that surviving spouses have. Under Montana law, spouses are entitled to a minimum amount of their deceased’s spouse’s estate. To ensure that a spouse gets this minimum amount, regardless of what is in the decedent’s will, the spouse has the option to either accept what is in the will or take the statutory elective share. Typically, the spouse would choose to take the option that would give them the greater share of the estate. The spouse must make the election within 6 months of the decedent’s death.
There are many reasons that the elective share can end up being the basis of litigation. For example, if the spouse and the personal representative disagree on how much the elective share would or how to properly make the election.
Probate litigation may occur if the personal representative disallows a claim. In order to get paid from the estate, creditors must present claims within 4 months from the published notice or within 30 days from the mailing or other delivery of the notice, whichever is later. The personal representative will let the creditor know if their claim is allowed or disallowed. Within 60 days of the mailing of the notice of disallowance by the personal representative, the creditor has the right to file a petition for allowance in the District Court and argue for the allowance of the claim. Mont. Code Ann. § 72-3-805