Wednesday, December 16, 2009

Probate Will Contests

By John DiMotto

People often ask me how I like probate cases and I tell them I really enjoy doing probate work. Almost invariably, they ask how such an active person like myself can enjoy such staid work. I tell them nothing is further from the truth. Probate cases are far from staid. They are quite challenging. Probate contests involve emotion, drama, and legal nuances that cause judges to call upon things we learned in Trusts and Estates in law school.

Take the "Will contest." They are not all like the Anna Nicole Smith case that made it all the way to the US Supreme Court, but they can come close. A will contest can pit one sibling against another sibling. The contest can create or extend a rift between them that can never be bridged. I oftentimes think, and sometimes ask the parties, if the deceased were in the courtroom with us what do they think he/she would feel about the contest.

A will contest usually involves a claim that the decendent lacked the testamentary capacity to have executed the will being offered to probate or that undue influence was used to get the decedent to execute the will being offered to probate. The party challenging the will has the burden to establish his/her claim. A full evidentiary hearing is needed and the rules of evidence apply. This is where it gets "legally fascinating." Many times one of the parties to the will contest wants to testify as to what the decedent said or did with the party which implicates the "Dead Man's Statute." In essence, this doctrine does not allow a person to testify as to what a dead person told them or about a transaction the person had with the dead person when it will benefit the living person, because it cannot be refuted. It is a doctrine that is not favored in the law, but in Wisconsin it still is the law. Most of the case law that discusses the Dead Man's Statute is very old but it is instructive. Reading these old cases and the factual scenarios can be like reading a good novel.

Finally, when you inject the emotional aspect of the participants on top of the legal nuances of the case, it creates high courtroom drama. A will contest is the Probate court version of a Family court property division contest in a divorce case.


  1. Judge: Maybe you could address this sometime in your blog. What is the general protocol as to a judge using CCAP? Here's my concern-if you are having a bench trial don't you see a problem with checking one of the parties or witnesses history? Say it is a Will contest. Should a judge be searching for info about the decedent or any of the parties. It bothers me a little because we dont know what the judge is looking at or how it might effect him. Or am I overly concerned?

  2. As a judge, I use CCAP all of the time at sentencing only. I tell the parties that I am doing so. It would be im[proper for a judge to use it during a bench trial unless a party asks the judge to take judicial notice of a file under 902.01 and all sides are permitted to argue whether it is appropriate.

  3. I enjoyed this post; I've bookmarked you so that I can check back. As an auctioneer, I am often involved in personal property disputes between siblings. I know such disputes can get nasty, but I never follow them all the way to the courtroom.