The most common type of estate planning document – and the one most people are likely familiar – is a Last Will and Testament. A Will is incredibly valuable; it can clearly and distinctly outline a person’s specific wishes for the disposition of assets.
However, there are certain situations in which a Will might be challenged. In the State of Maryland, this is known formally as a “Caveat proceeding.”
Such a proceeding is brought before the Orphans’ Court in the county in which the decedent was domiciled at death. An Interested Person could argue that a Will or Codicil is invalid because of a lack of testamentary capacity, undue influence, fraud, forgery, or the presence of a newer, superseding Will.
Who can contest a Will?
Maryland law provides that only an “Interested Person” has standing to challenge a Will or Codicil. An Interested Person is someone who is either named as a beneficiary/legatee in a Will, or a person who would otherwise inherit if the decedent had died without a valid Will.
Generally, Interested Persons include:
- Spouses
- Children
- Heirs
- Devisees
- Creditors
In broader terms, an individual eligible to file a Caveat proceeding is either someone named in a prior Will, someone named in a subsequent Will, or someone who would inherit if there were no Will at all.
What is an “in terrorem” clause?
Some people choose to include a provision in their Wills (or execute a Codicil later) to discourage an Interested Person from challenging the terms of the Will. In Maryland, this is known as an “in terrorem” clause. (Other states refer to it as a “no-contest” clause.) These provisions may effectively disinherit someone who brings an unsuccessful challenge. Such a “take it or leave it” proposition is often enough to prevent a contest.
Not all “in terrorem” clauses are enforceable. An experienced estate planning attorney can offer advice on whether one should include this provision in a well-drafted Last Will and Testament . It’s important to note that there are other ways to draft a Will to minimize the potential for challenges and family in-fighting without the need for a specific provision.
