Contesting a will in Maryland

A will contest in Maryland is called a caveat, and it starts a clock that most families do not know is running. If you believe a will was forged, signed by someone who did not understand it, or produced by pressure from the person who benefits most, the useful questions are whether you can file in time and whether you can prove what you suspect.

This page covers the grounds, the deadline, who is allowed to file, how the case moves through the courts, and what it costs.

What a caveat is

Maryland does not try will contests the way it tries other civil cases. A caveat is filed in the Orphans’ Court for the county where the will was admitted to probate. That court decides questions of law and can take some evidence, but it cannot hold a jury trial. When the contest turns on facts that are genuinely disputed, the orphans’ court transmits issues to the circuit court, where a jury decides them and the judge applies the law to the jury’s answers. A single case can sit in two courts before it is finished.

The deadline

Under Est. & Trusts § 5-207(a), a caveat has to be filed before six months have passed from the first appointment of a personal representative under the will.

That date is the appointment, not the date of death. Families routinely assume they have a year, because that is the rule in other states or because someone told them the estate “has to stay open” for a period. By the time they call, the window is closed and the only remaining claims are against people rather than against the will.

There is a narrow exception. If you never received the notice you were entitled to, or the probate was obtained by fraud or a material mistake, Rule 6-431 lets the court reopen the matter within 18 months of the death. The grounds are limited, and the petition has to explain why notice failed. It is not a general extension of the six months.

Who can file

You need to be a person in interest. In practice that means an heir at law who would take if the will were set aside, or a beneficiary under an earlier will that the later one revoked.

If you take property under the will you are challenging, you generally lack standing to attack it. That rule surprises people who were left a small bequest and want to argue that the rest of the will is wrong. The remedy for them is usually a different claim, against an agent or a fiduciary, not a caveat.

The grounds

Maryland caveats rest on a short list of theories. Most real cases combine two or three of them, and the evidence for one often carries another.

Improper execution

Under Est. & Trusts § 4-102, Maryland requires the testator to sign, or to direct someone else to sign in her presence, and requires two witnesses to sign in the testator’s presence. If the witnesses signed later, in another room, or on a different day, the will can fail even when the signature is genuine. This is the ground that is easiest to prove and easiest to overlook, because it turns on logistics rather than on family history.

Forgery

A signature that is not the testator’s, a page substituted after signing, or an attestation clause signed by people who were not there. Handwriting comparison, medical records, and signatures on checks and deeds from the same period do most of the work.

Lack of testamentary capacity

The question is whether the testator understood the nature of the property, the people who would naturally inherit, and the effect of the document at the moment of signing. Capacity is judged at signing, not the week before and not the month after. A diagnosis of dementia helps your case, but it does not decide it, and a person with dementia can have a lucid interval. I have seen wills upheld where the testator did not know the day of the week but did know exactly who her children were and what she wanted to leave them.

Undue influence

This is the most common ground and the hardest to prove. Maryland requires that influence be actually exercised and that it produce the will, meaning the will would not have been made but for the pressure. Suspicion, family friction, and an unkind result are not enough.

Courts look for a confidential relationship combined with suspicious circumstances. The confidential relationship is the caregiver, the live-in companion, the child who handled the checkbook and the doctors’ appointments. The suspicious circumstances are a sharp break from an earlier will, secrecy about the drafting, exclusion of the people a parent had always provided for, and a lawyer chosen by the person who benefits. When those appear together, the burden of producing evidence shifts to the side defending the will. That shift is often the whole case, because the witnesses who could explain the signing are dead or aligned with the estate.

Fraud

A will procured by a false statement to the testator about a beneficiary, or by a substitution of pages after signing. Rare, and usually proven through documents rather than testimony.

The no-contest clause

Many Maryland wills include a clause that takes away a gift from anyone who contests the will. Under ET § 4-413, that provision is unenforceable against a beneficiary who had probable cause to bring the caveat. The clause is a deterrent, and it is often recited by the person who benefits from the will to discourage the family member with the best case. Read it before you decide you are barred.

What happens after you file

The register opens a caveat proceeding and the personal representative answers. The court sets a schedule, and the parties exchange interrogatories and documents.

The two attesting witnesses will be deposed. Their recollections matter more than their signatures, and good lawyers spend real time on them, because a witness who says “I signed where she told me to sign and I did not see her sign” ends the case.

If facts remain disputed after discovery, the orphans’ court transmits issues to the circuit court and a jury hears them. Most caveats settle at mediation rather than reach a verdict, usually after the depositions, when each side can see what the witnesses will actually say. A contested estate that settles typically takes a year. One that goes to trial takes longer.

What it costs, and who pays

Most caveats are billed hourly. There is no honest flat fee. The number depends on how much discovery the case needs, and that depends on how hard the other side makes you work for it. A contest that resolves after limited discovery can be handled for a five-figure amount. One that runs through a jury trial will cost more than that, sometimes several times more. I give an estimate in writing after the first meeting and revise it when the case changes shape.

Some caveats can be handled on a contingency instead. That works when what you stand to recover is money or real property that will actually come to you if the will falls, and when the amount at stake is large enough to carry the risk of losing. It does not work where the point of the contest is to put a particular piece of property back into an estate, or where the value is sentimental rather than financial. Whether a contingency is available in your case depends on the size and form of the recovery, and I will tell you at the first meeting which fee structure I think is honest for it.

Who pays matters as much as the total. If the caveat succeeds and the estate benefits, the court can allow the caveator’s fees to be paid from the estate. If it fails, you will generally pay your own lawyer, and possibly contribute to the other side’s. The estate pays the personal representative’s defense costs under ET § 7-603, subject to the court’s approval of the amount. A well-funded executor can outlast a correct claim because of that asymmetry.

What to bring to a first meeting

• The will being probated, and any earlier will you know about, even a copy or a draft.
• The death certificate and the register’s appointment notice, if you have it.
• Medical records for the two years before the signing, or the names of the providers so they can be requested.
• Bank and brokerage statements showing transfers in the last year of life.
• Texts, emails, and voicemails, especially the ones someone has told you to delete.
• Names and contact information for the witnesses, and for anyone who saw your parent in the months before signing.

If the will stands

A caveat is one remedy among several, and it is sometimes the wrong one. If the will is valid but an agent under a power of attorney drained accounts before death, the claim is against the agent. If the personal representative will not account, the remedy is a petition for an accounting or for removal. If property passed by deed or by beneficiary designation, a caveat does nothing to it, and the case has to be built on a different theory. Part of my job at the first meeting is telling you which of these you have, before you spend money on the wrong one.

This page is general information about Maryland law, not legal advice, and reading it does not create an attorney-client relationship. Deadlines in your case may differ from the ones described here. Talk to a lawyer about your own facts.