When someone passes away, whether they left a will or not, their estate must go through a legal process referred to as probate or estate administration before the assets can be legally transferred to others. The process is handled by the Circuit Court Probate Division. Probate can be more than an administrative process. It can be a contentious process where the parties involved disagree on how aspects of the proceeding are handled and, as a result, initiate lawsuits.
A will challenge or will contest is a type of probate dispute. It is a formal challenge to the validity of a will that has been filed for probate. To contest a will, the objectant must have standing. “Standing” is a legal term that means that the person initiating a legal action must have the legal right to do so because they have a sufficient connection to the case. To initiate a will contest, the objectant must have a pecuniary interest in the estate of the decedent. Typically, those with standing include:
- Beneficiaries under the will submitted
- Intestate heirs of the estate
- Beneficiaries under a previous will
- Creditors of the estate
The objection must state legal grounds. Examples of legal grounds for a will contest include:
- Incompetent testator. Testator was not mentally competent when they executed the will.
- Improper execution. Will was not executed according to the requirements of New Hampshire law.
- Duress. Testator was coerced into making the will.
- Undue influence. Testator was manipulated into make the will.
- Fraudulent representations. Testator was intentionally misled so that they would make a particular will.
Ultimately, to prevail the objectant must be able to prove the allegations. If they can, the court will move forward and admit the will to probate. If the court concludes that the will is not valid, the court will not probate it. Instead, either a prior or later will will be probated, or New Hampshire’s law of intestate succession will apply.
During the estate administration process, the personal representative appointed by the court is required to handle the day-to-day tasks of settling the estate. Their responsibility it significant. How they fulfill their responsibilities can have a significant impact on the value of the estate. The beneficiaries and heirs depend on the personal representative to follow the law and perform their duties with care. In fact, as fiduciaries, they are required to be honest, careful, and to put the interests of the estate first. If this does not happen, beneficiaries and heirs have the right to initiate litigation to hold the personal representative accountable.
Litigation by Creditors
Within 6 months of when the administrator was appointed, creditors can seek payment of the debt by sending the administrator a bill. If there are sufficient funds in the estate, the administrator will pay the debt. RSA § 556:2. If the administrator rejects a claim, the creditor has one year from the date of the appointment of the administrator to file a civil action to attempt to obtain payment. RSA § 556:5
Impact of Probate Disputes
Litigation can significantly impact the estate proceeding and can change the parties to the proceeding and the value of the estate:
- Will invalidated (e.g. if will challenge is successful)
- Change in beneficiaries (e.g. if will challenge is successful)
- Change in administrator (e.g. if a challenge to the fiduciary is successful)
- Reduction in value of the estate (e.g. if court allows a previously denied claim)
- Change in guardianship (e.g. if challenge to guardianship appointment is successful)
In addition, any litigation will result in delays. For example, if the will is contested, the administration process cannot move forward until the court determines whether or not the will is valid. Furthermore, the court may require the estate to pay at least some of the expense of the litigation. Increased expense of administration means that the value of the estate will decrease, which means that the amount available to distribute will decrease.