When a family member overlooks you in his will or snubs you by leaving you a negligible gift, you can't ask him why, but you may have recourse. You can contest or challenge the will, but the process isn't always without risk. The Orphans' Court oversees probate and will contests in Maryland, where will contests are called "caveat proceedings."
Only certain individuals can file caveat proceedings in Maryland. If you want to challenge a will, the decedent must either have named you in it as a beneficiary, or you're an heir who would have inherited by statutory law if your loved one had died without a will. In legal terms, you're "interested in the estate" if you meet either of these criteria. When you file a will challenge with Maryland's Orphans' Court, you're the "caveator."
Read More: What to Do With a Will After a Person Dies in Maryland Probate
You can't file a caveat in Maryland just because you feel the decedent wronged you. You need grounds. Acceptable grounds in Maryland include undue influence, if you believe someone coerced or pressured the decedent into writing the will the way he did. You can also file a caveat proceeding if you believe mental impairment caused the decedent to include terms in his will he wouldn't have considered if he'd been of sound mind. Mental incapacity might also cause him to forget and omit a loved one entirely. You can challenge a will if the document doesn't meet Maryland's statutory requirements, or because you've located a more recent will.
Maryland doesn't give you much time to file a will challenge. In most cases, you only have six months after the executor or personal representative of the estate is officially appointed. An exception exists if you've located another will that contradicts the one that's in probate. In this case, you have up to three months after probate of the first will closes. The court will reopen probate to allow a judge to decide your caveat proceeding.
As with any legal proceeding, there are pros and cons to initiating a will contest. Maryland law allows "no contest" clauses in wills, also called in terrorem clauses. An in terrorem clause states that if you're a named beneficiary in the will and challenge or contest it, you receive nothing. However, Maryland will only uphold such clauses if you don't have probable cause or a legitimate reason to file a challenge. Another consideration is that if the court decides to invalidate the decedent's entire will, Maryland will determine your share of the estate according to statutory law, just as if the decedent had died without a will. This might result in you receiving a negligible share of the estate, anyway. Statutory law passes an estate to a decedent's next of kin, and the surviving spouse and children usually receive the lion's share. If you're not closely related to the decedent or not related to him at all, you might receive very little or nothing, even after a successful caveat proceeding.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.