Probate Disputes

A probate dispute is a disagreement that occurs during the estate administration process. Disputes can develop throughout the process and as early as right after the petition to initiate probate is filed. In South Carolina a probate dispute can have a profound impact on a probate proceeding, delaying the process and, as a result, delaying the distribution of assets. A dispute can also impact the value of the estate as the estate may have to pay expenses related to probate litigation out of estate assets. Further, a probate dispute can lead to a change in beneficiaries and removal of fiduciaries. For example, in Gunnells v. Harkness, No. 2017-001131, 2020 WL 1542114 (S.C. Ct. App. Apr. 1, 2020), there was a dispute about the validity of a will. If the plaintiffs prevailed, the beneficiaries would change from one person to three persons.

Will Contest in South Carolina

A will contest is a lawsuit in Probate Court designed to invalidate a will. A will contest can be initiated by an interested party such as a family member who believes that there were irregularities in the circumstances of its creation or execution such that it should be invalidated.

Valid reasons for contesting a will include lack of testamentary capacity, undue influence, improper execution, or duress.

  • Lack of testamentary capacity. South Carolina law requires that a testator not have been mentally incompetent at the time they executed the will. If there is evidence that they were incompetent, the will would be invalid.
  • Undue influence. Undue influence occurs when a testator was illegally influenced into executing a will they would not have otherwise made. The circumstances must have been such that the offender intentionally and illegally took advantage of a vulnerable testator for their own benefit. See Gunnells v. Harkness, No. 2017-001131, 2020 WL 1542114 (S.C. Ct. App. Apr. 1, 2020)
  • Improper execution. A will can be contested on the grounds that it was not properly drafted and executed in accordance with the requirements of South Carolina law.
  • Duress. If the testator was forced to make a will due to actual violence or threats, the will would not be valid.

Successful will contests can result in a prior or later valid will being probated or the estate being declared intestate. If that happens, the estate assets will be distributed to the decedent’s heirs based on the law of intestate succession. SC Code § 62-2-101 et seq.

Breach of Fiduciary Duty

A personal representative is a fiduciary with respect to the estate and its beneficiaries and heirs. A fiduciary is a person who has a relationship of trust with respect with another person or entity and whose job is to act on behalf of that person or entity. The fiduciary must act in the best interests of the person with loyalty, honesty, and faithfulness. If the fiduciary does not, they would have breached their fiduciary duty and would be liable to the person for losses suffered. The court may even conclude that the personal representative must be removed. Common reasons for fiduciary litigation include:

  • Improper investment
  • Unauthorized self-dealing
  • Accounting disparities
  • Wasting estate assets

With respect to an estate or probate proceeding, other fiduciaries may include a trustee, guardian, attorney, and accountant.

Elective Share Disputes

In South Carolina married persons are entitled to receive a portion of their spouse’s estate. They cannot be completely disinherited. The surviving spouse may choose to take an “elective share” in lieu of the provision made in the will which would be 1/3 of decedent’s probate estate. SC Code § 62-2-201(a). The spouse must make the election within the later of 8 months after date of decedent’s death, 6 months after probate of decedent’s will, or 30 days after spouse is served with a summons and petition to set aside informal probate or to modify or vacate an order for formal probate. SC Code § 62-2-205(a).

A dispute may develop if the personal representative and the spouse do not agree on the amount the spouse would be entitled to if the spouse made the election. Elective share disputes make also develop over whether the election was actually made.

Other Types of Probate Disputes

Other types of disagreements during the estate administration process can include a will construction, guardianship disputes, and heirship claims.

If there are terms of a will that are ambiguous and open to different, conflicting interpretations, the parties may ask the court to construe the ambiguous terms. Guardianship disputes can develop if someone challenges a guardianship appointment or believes that the guardian has not been fulfilling their duties properly. Heirship disputes can arise when someone claims to be an heir and others dispute that claim. This can happen if there is a question of paternity or if a “long lost” relative comes forward claiming entitlement to an intestate estate.

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