Contesting a will is a formal way of asking the court to determine if a will is valid or not. A will may be contested for a variety of reasons. Maybe you were completely left out of a will or you did not inherit as much as you thought you would. If you are the personal representative of an estate and a party is arguing that the will is invalid, you may want to know if that person has any grounds to contest the will.
A petition to contest a will is done under a “caveat proceeding” through the Orphan’s Court, which handles all probate proceedings.
Who May Contest a Will? To be eligible to contest a will, Maryland law requires that you have an interest in the estate, making you an “interested party.” There are two ways to determine this:
- You are named in the will as a beneficiary; OR
- If there had been no will, you would have inherited something under Maryland intestacy laws.
Read the Rule: Md. Rule 6-431
Grounds to Contest. There must be a legitimate reason for the court to invalidate a will. Simply being unsatisfied with what you received under the will is not enough. Maryland courts consider the following reasons legitimate grounds to contest a will:
Failure to Meet Legal Requirements of a Valid Will. A valid will in Maryland must meet the following legal requirements:
- Must be in writing;
- Signed by the testator (i.e. the person creating the will) or by someone else on behalf of the testator in the testator’s presence and with their permission;
- Attested and signed by two or more credible witnesses in the testator’s presence;
- Testator must be 18 or older;
- Testator must be legally competent at the time the will is signed. Read the Law: Md. Code, Estates and Trusts § 4-101, § 4-102
Note: During the COVID-19 health emergency, certain in-person requirements for witnessing rules were changed. Learn more.
Undue Influence. This occurs when someone coerces or exerts such strong influence over the testator that it overpowers the testator’s mind, causing the testator to create a will that the testator would not have otherwise created.
Incompetence. If the testator was suffering from some sort of mental impairment (e.g. Alzheimer’s, dementia, or a delusion) at the time the will was created, the will could be invalidated.
Forgery or Fraud. If the will was completely forged or the testator was tricked into the signing the will, it may be invalidated.
Duress. Unlike undue influence, which is unfair persuasion, duress is an improper threat imposed on the testator to create a will or certain terms in a will.
Newer Will. If a will is found that appears to be more recent, the older will could be invalidated.
Timing. A petition to “caveat a will” may be filed before the estate is opened, but no later than six months of the estate being opened and the personal representative being appointed.
Read the Law: Md. Code, Estates and Trusts § 5-207
Note: You may be able to ask the court for an extension to file the petition if there are issues related to notice, fraud, material mistake, or substantial irregularities in the proceedings.
Read the Rule: Md. Rule 6-431
Consequences of Contesting a Will. Some wills contain a “no-contest” clause (or in terrorem clause), which prohibits a person from inheriting anything if they contest the will. Before initiating the caveat proceeding, it is important to know whether or not the will contains such clause.
Petition to Caveat. To contest a will, file a petition to caveat with the appropriate Register of Wills. Maryland Rule 6-431 sets out what you need to include in the petition. Additional documents may be required. There is no fill-in-the-blank form. You will need to draft your own document. Reach out to your local law library to request samples/templates. The process to contest a will can be complex, and it’s a good idea to talk to an attorney. Learn more about getting help from a legal professional.