contesting a will

“I was left out of mom’s will, can I challenge the will in court, and what are my chances of success?” That is a question that I have answered for prospective clients hundreds of times over the years. Of course, the person asking the question can be any heir at law (those individuals who would inherit if there were no will) who believes he or she should have been included in the will of the decedent, but the answer is almost always the same:  You can challenge the will by filing an objection in the Probate Court, arguing that the will should not be admitted, but prevailing in the challenge is often an uphill battle. In Connecticut, anyone 18 years or older and of sound mind can dispose of his estate by preparing a will.  If the will leaves the estate to someone other than the heirs at law, or leaves disproportionate shares of the estate to the heirs, a dissatisfied heir may seek to challenge the will. During such a challenge, the Probate Judge will need to consider three main issues:

  1. Was the will executed with the requisite legal formalities;
  2. Did the decedent have testamentary capacity; and
  3. Was the will executed freely, without undue influence, fraud or mistake.

The first issue is by far the easiest to resolve. Section 45a-251 of the Connecticut General Statutes spells out what is needed to satisfy the formalities of preparing a will. It needs to be in writing; subscribed by the testator; and attested to by two witnesses, each subscribing in the testator’s presence. Rarely have I seen a situation where the will has been rejected because it did not satisfy the procedure outlined in the statute. The second requires that the testator, at the time of execution, must have mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution.  And finally, there must not be undue influence, which has been described as the exercise of sufficient control over the person to destroy his free agency and constrain him to do what he would not have done absent such control. The issues of testamentary capacity and undue influence are often litigated in the Probate Court, with those challenging the will often facing the uphill battle of presenting witnesses or documentary evidence to show that at the time of execution, the testator was suffering from diminished capacity or was unduly influenced.  The diminished capacity sufficient to overcome the legal test must be significant as the courts have held that even a person with some infirmities that required appointment of a conservator can, in a moment of lucidity, have sufficient testamentary capacity to execute a will. As for the undue influence necessary to overcome an otherwise proper will, four elements must be proven: a person who is subject to influence; an opportunity to exert undue influence; a disposition to exert undue influence; and a result indicating undue influence.

While as a preliminary matter the person who seeks to admit the will to probate must show that the will was properly executed and the existence of the requisite testamentary capacity, that burden is usually met by testimony of the attorney who prepared the will and the witnesses to the execution. The burden then shifts to the challenger of the will to present to the court witnesses or documents to show that there was a lack of such capacity, or the exercise of undue influence which caused the testator to do something he or she would not have otherwise done with respect to the disposition of his or her estate. Upon hearing all of the evidence, the Probate Judge issues a decision either admitting the will to probate or upholding the challenge to the will. Any party to the probate proceeding will then have the right to appeal the decision to Superior Court, which hears the matter de novo.  In a de novo appeal, the Superior Court holds a new trial, and would hear new evidence and review all issues, and then proceed to a decision on the merits of the will challenge.


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