The Problem: Decedent has left a Will that contains a provision you want to eliminate, for example, you are a child of the Decedent and the Will gives all of the Decedent’s property to Decedent’s surviving spouse (or vice versa).
Your Remedy: File with the Court a Petition challenging the legal validity of the Will, usually known as a Will Contest or a Petition to Set Aside the Will.
A person’s right to dispose of his/her property at death by Will, according to the Courts, is a valuable right protected by statute. Estate of Price, 75 Wn.2d 884 (1969). A Will that is rational on its face and executed in legal form is presumed to be valid. Estate of Eubank, 50 Wn.App. 611, 617 (1988). Any Will admitted to probate is presumed to be valid. Estate of Jolly, 3 Wn.2d 615 (1940). Therefore, a challenger of the Will has the burden of proof to show its invalidity. RCW 11.24.030; Estate of DeLion, 28 Wn.2d 649 (1947).
A challenger of a Will must prove its invalidity by clear, cogent, and convincing evidence. Estate of Black, 153 Wn.2d 152 (2004). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be highly probable. Estate of Watlack, 88 Wn.App. 603 (1997). “Highly probable” means significantly greater than the usual civil standard of proof, “by the preponderance of the evidence.” Therefore, to invalidate the Will, its must provide evidence that the Will’s invalidity is significantly greater than “more likely than not.” The Personal Representative of a contested Will is responsible for its defense. Estate of Esala, 16 Wn. App. 339 (1977).
There is no right to a trial by jury in a challenge to a Will. RCW 11.24.010; Estate of Clayson, 26 Wash. 253 (1901). Therefore, if the challenge proceeds to trial, it will be determined by the Court.
Courts have no jurisdiction over Wills except as provided by statute. Pond v. Faust, 90 Wash. 117 (1916). Therefore, a challenge to a Will is a purely statutory proceeding, and the Court hearing a challenge to a Will is limited in its ability to find a Will invalid by the provisions of the applicable statute. Estate of Kane, 20 Wn.2d 76, (1944); Estate of Van Dyke, 54 Wn.App. 225 (1989); Estate of Kordon, 126 Wn.App. 482 (2005).
In Washington, there are three way to provide the Court with authority to invalidate a Will:
RCW 11.20.020 provides in part:
(1) Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate the same, and such order shall be conclusive except in the event of a contest of such will as hereinafter provided. […]
In WA under RCW 11.20.020, most probates are begun and Wills are admitted in a nonadversarial, ex parte hearing, in which the person named in the Will as its Executor (ie, Personal Representative):
This occurs ex parte, meaning that the Executor may take all these actions without having to give notice to anyone.
Exception: Within the first forty days of Decedent’s death if the Decedent left a surviving spouse who is not the named Executor or has not consented to the named Executor’s appointment. RCW 11.28.030 Therefore, it is highly unlikely that anyone interested in a Decedent’s estate will learn about the Will’s admission until after it has been admitted and those persons interested in the estate have received Notice of Probate.
While RCW 11.20.020 does authorize the Court to hear a challenge to a Will before its admission, the Courts have uniformly said that an interested party hostile to a will should not be permitted to participate in the probate proceeding itself but should, instead, proceed by allowing the Will to be admitted and then filing a Will Contest under RCW 11.24.010 et seq. Estate of Larson, 187 Wash. 183 (1936); Gordon v. Seattle-First Natl. Bank, 49 Wn.2d 728 (1957). There are two exceptions in which the Court is required to hear a pre-admission challenge:
And despite the disfavor of a pre-admission challenge, a Court may exercise its discretion to hear the challenge if it believes the issues presented should be determined. Estate of Campbell, 47 Wn.2d 610 (1955); State ex rel. Perry v. Jordan, 50 Wn.2d 93 (1957); Estate of Black, 153 Wn.2d 152 (2004).
Caution: See Res Judicata, below.
See “True” Will Contests.
One of the peculiarities of Washington law is that its Courts have determined that only claims that challenge the validity of a Will when it was executed are Will Contests under RCW 11.24.010 and, therefore, subject to the four month statute of limitations. Estate of Wiltzius, 42 Wn.2d 149 (1953). Any challenge to a Will based on any action taken after its execution, such as its revocation, is not subject to the four-month Will Contest statute of limitations. Estate of Gherra, 44 Wn.2d 277 (1954) [Testator made his Will and then married, resulting in an omitted spouse.] The following types of claims, for example, are not considered in Washington to be Will Contests and, therefore, are not subject to the four-month Will Contest statute of limitations period:
To challenge a Will, the petitioner must have a “direct pecuniary interest” in the Will — he/she must “stand to lose directly in a financial way” if the Will is allowed to stand. Estate of O’Brien, 13 Wn.2d 581, 583 (1942).
Examples of “interested” contestants:
Examples of contestants who are not “interested”:
Practically speaking, the legal doctrine of res judicata says “In Court, a person is prohibited from taking two bites on the apple” — in other words, if someone has made a claim in Court and lost, he/she can’t come back and make a second claim regarding the same facts and circumstances. Seattle-First Nat’l Bank v. Kawachi, 91 Wn.2d 223 (1978); DeYoung v. Cenex, Ltd., 100 Wn.App. 891 (2000). Consequently, res judicata prevents the following persons from filing a Will Contest:
Once a Will has been admitted to probate, any Will Contest must be filed by four months after the date the Court admits it to probate. RCW 11.24.010 Estate of Barr, 76 Wn.2d 59 (1969). This rule is remarkably strict. For example:
Exception: The four-month period does not begin for a “reasonably ascertainable” contestant who fails to be sent Notice of Probate. Hesthagen v. Harby, 78 Wn.2d 934 (1971); Estate of Toth, 138 Wn.2d 650 (1999); Estate of Little, 127 Wn. App. 915 (2005).
In a challenge to a Will, if the Court sustains the Will and finds that the contestant acted without probable cause and good faith, it may assess costs and reasonable attorney’s fees against the contestant. RCW 11.24.050 If the Court invalidates the Will, the Court may assess costs and reasonable attorney’s fees against any party. RCW 11.24.050 & 11.96A.150 Therefore, if the Court finds that a challenger to a Will challenged it, for example, based on spite and without probable cause, the Court can requires the challenger to pay the estate’s attorney’s fee and costs involved in defending the Will.