Contesting a will is serious and only possible in specific scenarios. If fiduciary misconduct was involved in creating a will, it may not hold up in probate court when challenged.
You can only contest a will because of fiduciary misconduct if the misconduct occurred before or while the will was being created, such as undue influence, fraud, or deception. If there is fiduciary misconduct involving a will executor after the will is created, you cannot contest the actual contents of the will. However, you can petition to get the executor removed from their role as a fiduciary, a process our lawyers can help you navigate to ensure proper estate administration in the future.
Call the Heyman Law Firm today at (410) 305-9287 for help with your case from our Baltimore estates and trust litigation lawyers.
When Can You Contest a Will for Fiduciary Misconduct?
A fiduciary has a legal responsibility to act according to the wishes of another entity or person, such as a testator creating a will. If a fiduciary violates this duty before or during the creation of the will, the will might be vulnerable to being contested by interested parties in the future.
Undue Influence
Fiduciaries who unduly influence testators to manipulate the contents of a will are in breach of their fiduciary duty. Wills can generally be contested if a fiduciary, like a financial advisor, unduly influenced the testator before or during the will’s creation.
Fraud or Deception
Fiduciaries who exercise fraud or deception during the creation of a will also demonstrate egregious fiduciary misconduct. Lying to a testator or having them unknowingly sign an altered document is a common example of fraud that may give any interested party grounds to contest a will in the future.
When You Cannot Contest a Will for Fiduciary Misconduct
While you can use fiduciary misconduct during the creation of the will as grounds for a challenge, you cannot use later fiduciary misconduct as grounds to undo the whole will.
Any misconduct that happens after a testator dies would not relate to the actual content of the will, but rather how instructions are carried out. This does not give grounds to challenge the validity of the document itself.
That doesn’t mean you have no recourse; our lawyers can help you seek remedies for improper estate administration.
Can You Remove the Executor of a Will for Fiduciary Misconduct?
Although you cannot contest a will for the executor’s fiduciary misconduct in administering the estate, you may be able to remove them from their role as executor.
Only interested parties, such as heirs under the will and heirs at law, may file a petition with the probate court to remove the current executor for breach of fiduciary duty, which is grounds for removal.
How Do You Remove the Executor of a Will Due to Fiduciary Misconduct?
If you are determined to remove the executor of a will for fiduciary misconduct, our estates and trust litigation lawyers may help you achieve that goal by taking the proper steps.
First, we can request an accounting of the estate to obtain information about estate assets and recent transactions or distributions. If the accounting is inaccurate, incomplete, or unavailable, we may file a petition with the probate court to remove the executor as fiduciary.
After you file your petition with the probate court, you will have a hearing during which our lawyers can present evidence of fiduciary misconduct to support removing and replacing the current executor.
What Are Common Examples of Fiduciary Misconduct When Executing a Will?
Fiduciary misconduct in estate administration can be hard to identify, especially for those who have never been beneficiaries of a will before or experienced probate.
Self-Dealing
Self-dealing is one of the most common examples of fiduciary misconduct during the execution of a will or an estate. Wrongfully taking estate assets or changing their ownership is misappropriation and a serious violation of an executor’s role as a fiduciary.
Withholding Inheritances
The executor of a will must follow the testator’s instructions, including paying distributions to beneficiaries as intended. The executor of a will does not have the right to withhold payable distributions to beneficiaries, and can be removed from their position for doing so.
Comingling Assets
Another common example of will executor misconduct is commingling estate assets with their own personal assets. An executor might send money to themselves intending to return it to the estate, but the funds get mixed up and are never returned.
Neglecting Administration
Will executors breach their fiduciary duties when their neglect to administer an estate results in any financial loss to the estate or beneficiaries.
Favoring Beneficiaries
An executor cannot favor certain beneficiaries over others when administering distributions and must follow the testator’s instructions precisely. Favoring beneficiaries is blatant fiduciary misconduct and can lead to an executor’s removal and the appointment of a new executor.
Can You Remove an Executor Because of Conflicts of Interest?
Many executors are heirs under the will and have an interest in the outcome. Many people will set their child, spouse, or another close loved one as their executor.
This is generally allowed, and simply being an heir is not enough to show the executor has conflicts that prevent them from carrying out their duties as executor.
Can You Sue the Executor of a Will for Fiduciary Misconduct?
There may be other remedies available to you in addition to removing the executor of a will from their role because of fiduciary misconduct, such as suing the executor personally for the losses you have incurred because of their breach of duty.
However, if the probate court “surcharges” the defendant for the damages from their misconduct, you might not have to pursue separate civil litigation to recover what you have lost because of fiduciary misconduct.
Contest a Will with Our Help
Call the Heyman Law Firm’s estates and trust litigation lawyers at (410) 305-9287 for help with your case.