The familiar adage “don’t count your chickens before they hatch” certainly applies in probate law—heirs and beneficiaries should only count on inheriting from the testator’s last valid estate plan.
“But what happens when the testamentary document presented in probate is invalid?”
This legal question stands at the heart of nearly every will dispute litigated in Iowa since the courts started reviewing them over a hundred fifty years ago.
Invalidating new or altered testamentary documents in probate requires challengers to plead compelling legal arguments that explain why the courts should set aside the present will and replace it with an earlier one.
Will challenge lawsuits are especially unique in that Iowa Civil Procedure requires claimants to pursue diverse filings before the courts can accept the case for consideration.
Let’s walk you through the steps for properly bringing forward will challenge litigation against brand new testamentary documents and discuss three must-serve discovery subpoenas for giving your case the ammo it needs to secure a favorable verdict.
File the Older Will with a Petition for Probate
Probate is about fraud prevention and freezing the estate until the courts can determine whether the testamentary documents submitted are valid. In Iowa, a testator’s Last Will and Testament does not become effective and disputable until an interested party files it with the District Court in the county where the decedent lived.
Challengers therefore cannot contest or affirm a will that has never entered probate. This means that regardless of whether someone has already presented a newer will, if you possess evidence of a potentially valid earlier testamentary document, you must file it with the court as a “competing will” for the court’s consideration.
When submitting a competing testamentary document, you must also attach a “Petition for Probate” with the filing, asking the courts to confirm the executor appointment expressed in the will offering and to issue the fiduciary “Letters of Testamentary” on behalf of the estate.
If you wish to dispute the latest testamentary document in probate but do not have an earlier will to submit, you may still file a Petition to Probate with you your objection supplement and ask the court to assign someone to serve as the estate’s personal representative.
You must however act promptly when suing to set aside a novel will because once the courts formally accept the opposing side’s testamentary document, you cannot no longer file a Petition to Probate—forcing you to bring a different lawsuit to resolve the controversy.
File Your Objections
Objecting to the will in probate calls for the contestant to submit a compelling challenge under Probate Code §633, Section VI, Part 5 backed up with grounds stemming from Iowa precedent law.
Here, you’ll explain why the court should dismiss the defendant’s testamentary document and how a statute or current legal doctrines allows the court to do so.
Will contest objections are different from objections filed in civil lawsuits—you must personally serve a copy of the demurrer and summons not only to the defendant but also to the heirs and beneficiaries named in the will that you want thrown out.
This requirement ensures that you sue the entire estate and not just the executor.
Overcome Motions for Summary Judgment
The estate’s defense team will most likely move to dismiss the testamentary document you submitted in probate under summary judgment soon after receiving your summons and objections.
It’s here where you’ll hold the burden of proving the testator properly executed the will you want upheld (under Probate Code §633.279).
If you cannot meet that burden, but hold evidence proving the will in probate is invalid, you must bring a different lawsuit to have the will dismissed (i.e. testamentary capacity, undue influence, fraud, or fiduciary litigation)—remember that the burden you’re expected to meet at trial will always mandate how you’ll conduct discovery during will dispute litigation.
Three Important Documents You’ll Need During Discovery
Ok, so you’ve failed at pre-trial hearings to set aside an invalid will offered in probate, and you’re ready to throw in the towel; but as you’re leaving the courthouse, your estate dispute attorney tells you that you can take back your inheritance by claiming undue influence and lack of capacity.
Your probate litigator thereafter sues the estate and tells you to get ready to develop a strategy once the witnesses answer the discovery subpoenas served to them earlier that day—you then ask yourself:
“What information do we need to begin discovery?”
Will challenge discovery efforts and case strategy approaches should begin shortly after subpoenaing copies of three important records:
Estate Planning Attorney File
You’ll first want to subpoena the testator’s estate planning file. Your probate litigator will most likely send a courtesy letter to the attorney who drafted the testamentary document in controversy, asking him/her to secure the file and letting the firm know that a subpoena is on the way.
The attorney’s notes found in the deceased’s estate planning archive may hold physical evidence that confirms the testator’s original intent to distribute assets, and at minimal, the file will at least recount the circumstances surrounding the will drafting and its execution while the testator was alive—all valuable information that can help you win your case.
It’s also not a problem when a testator’s estate attorney fails to produce the file because your will dispute litigator can motion the courts to compel the fiduciary to surrender the document rather quickly.
Medical Records of the Deceased
Secondly, you must subpoena the testator’s medical history. Here, you’ll want to target all healthcare providers who the deceased consulted with before, during and after the will’s execution (i.e. doctors, nurses, personal caregivers, hospitals, assisted care facilities).
Most healthcare providers respond to subpoenas quickly, especially when the estate dispute attorney drafts the order well and includes specific details on what exactly to produce.
Medical records are rich with information and can reveal the decedent suffered from mental impairments while he/she prepared the will (i.e. dementia, Alzheimer’s). The documents may further show the testator was weak, vulnerable and susceptible to the undue influence of another while he/she was alive.
The deceased’s financial records can also help you win your lawsuit, particularly when claiming a wrongdoer hijacked your inheritance by influencing the testator into modifying or drafting his/her will; so you’ll want to subpoena this information.
Most influencers take from the estate by withdrawing cash from the testator’s bank account or writing checks to themselves while the testator is alive (since they just can’t wait until after the testator passes away to embezzle). Financial records will expose unauthorized ATM withdrawals or forged bank drafts—valuable evidence that can show someone held the capacity to loot the testator’s assets.
Finally, it’s important to serve the subpoenas as soon as discovery begins and make sure the respondents send you complete files. Doing this gets the information into the hands of expert witnesses for necessary review and prepares them for testifying on your behalf when your lawsuit heads to mediation or to trial when settlement negotiations fail.