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History of Probate Law
HISTORY OF INHERITANCE: PART II
You cannot take it with you, so what happens to your property when you die? Assets can be transferred by drafting a will, or a probate court will distribute your estate by the laws of intestate succession after you die. The word “probate” derives from the Latin word “probationem,” which means approval, proving, or trial. Black’s Law Dictionary defines “probate” as a “[c]ourt procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered.” 1 Part I of this series explored historical systems of intestate succession. Part II of this series describes the development of probate processes under English and American law. The particular procedures have varied throughout history, but in general—once a will is validated—a probate court issues letters testamentary appointing an executor to gather assets, pay proper debts, and distribute assets to beneficiaries.
Origins of Probate Practices
English and American probate procedures developed from the ancient Roman practice of breaking the seals on a will before witnesses who originally attested the will. Early Roman wills had to be witnessed by six or seven persons who affixed their seals to the will (called a “will under seals”). When an ancient Roman will was opened before or after the testator died, a majority of the witnesses who had affixed their seals had to be present at the opening, although a witness could send a friend in his place if he could not attend in person. The witnesses or their representatives had to verify that the seals were unbroken when the will was withdrawn for inspection. After an ancient Roman will was opened, the witnesses or representatives had to state that they recognized their seals and were satisfied that the will was intact when it was opened and had not been altered. English courts copied the practice of validating wills from the Romans, and different courts shared jurisdiction over the probating of wills in early England.
Ecclesiastical and Common Law Courts
Before the Norman Conquest, there were no ecclesiastical courts in England, so the clergy had to file suit in secular common law courts when they had a legal dispute. William the Conqueror established ecclesiastical courts, in addition to existing common law courts, and assigned jurisdiction over the inheritance of personal property to ecclesiastical courts, while jurisdiction over the inheritance of land was retained in common law courts. Because bishops were trained in Catholic canon law, the rules governing probate of a will were based primarily on Catholic law rather than English common law. However, ecclesiastical courts did not have exclusive jurisdiction over wills bequeathing personal property because creditors could also sue the deceased person’s estate in a common law civil court and receive a judgment for debts owed. Neither ecclesiastical nor common law courts were suited to handle conflicting claims of creditors and heirs, so English chancery courts evolved to resolve such conflicts.
Chancery Courts
Chancery courts were administered by the king’s chancellor and served as courts of equity with flexible rules of procedure. When there were conflicting claims to land or personal property, these cases were assigned to chancery courts if the chancellor believed common law courts might produce an unfair outcome. Chancery courts heard evidence and ordered the administrator of the will to carry out its decision, or such courts took charge of the estate and disposed of it through their own administrative actions. However, the chancery courts could not act until after an ecclesiastical court had issued letters of administration to the executor.
Proceedings before the civil or chancery courts were recorded in Ex Officio Act books by scribes of the chancery courts. These records contained the name of the deceased, the names of executors or administrators, notice of a grant of execution on an inventory of the estate, the value of all goods in the estate, and any fees charged for services by the court or the administrator. These books also listed any claims against the estate, requests for the payment of the deceased person’s debts, and other administrative documents connected with probating and administering a will.
Evolution of English Probate Procedures
Gradually, ecclesiastical courts lost most of their jurisdiction over wills and other matters associated with the inheritance of personal property, although church courts retained power over the validating of wills into the nineteenth century. Litigants who were unhappy with the rulings from ecclesiastical courts could seek a writ of prohibition in a common law court to stop church courts from carrying out their orders. Proliferation of these writs eventually handicapped ecclesiastical courts so that they could not function properly. To remedy this problem, chancery courts assumed jurisdiction over contested wills, resolved the impasse between ecclesiastical and common law courts, and administered justice more effectively using equitable rules and procedures.
Placing jurisdiction over matters involving disputes about wills and inheritance laws within the chancery courts made sense because their flexible rules allowed these courts to handle both personal property and real estate at the same time. However, the validation of wills and the appointment of administrators remained within the jurisdiction of ecclesiastical courts. Parliament finally transferred jurisdiction over probate cases to the Court of Probate in 1857.
American Probate Practices
Probate procedures in America developed differently from those under English common law because there was no state religion, and there were no church courts in the colonies. Probate jurisdiction was vested in American civil or statutory probate courts, depending on the population in the county where the court was located. Statutory probate courts were established in populous counties while, in more rural counties, civil courts handled probate matters. American courts allowed the probating of wills dealing with land and personal property in the same civil court because the colonies did not have Norman feudal tenure. American probate courts required that an executor be appointed for every estate, and he or she was responsible for filing the original will in a probate court and administering the estate after the death of the testator.
Probating a Will
An American executor is required to produce the original will for probate. If the executor does not offer the will for probate, another interested party, such as a beneficiary, can petition the probate court to name a new executor to carry out the probate process. Generally, probate is initiated when the executor’s attorney files a petition for probate, but in some states, filing the will alone is sufficient to begin the probate process. Usually, the probate petition must allege that the testator is dead and, prior to his or her death, was domiciled in the county where the case is filed. Most probate courts require that interested parties be given notice before the probate court will schedule a hearing. If the will is not contested, the probate proceeding is fairly simple: a witness, usually the executor, testifies that the testator has died and was domiciled in the county where the probate case is filed at the time of his or her death, and that the will on file is the valid last will of the decedent.
Self-Proving Affidavits
Many states allow a self-proving affidavit be affixed to a will, which dispenses with calling attesting witnesses to verify the execution of the will. If a self-proving affidavit is not available, an attesting witness must appear and give evidence about the will’s execution. The initial probate proceeding does not determine the construction or effect of the will. Rather, the probate court simply determines that the offered will is the original last will and testament of the deceased and was properly executed. The court then issues letters testamentary to the executor, naming him or her administrator of the estate. Some states require the probate court to supervise the executor, while other states allow an independent administration of the estate by the executor. A will must be probated because the beneficiaries cannot establish their rights to the property otherwise.
If the original will cannot be found, its terms can usually be established by submitting a copy of the will and introducing testimony of a person familiar with the original will, such as the attorney who drafted it. The probate procedure then follows the same course as if the original will had been produced.
Will Contests
Once a will is offered for probate, any interested party may enter an appearance and contest the validity of the will, but legal experts estimate that only around one percent of American wills are disputed. Many attorneys try to protect against a suit being filed by including a nocontest clause in the will they are drafting. Many probate courts will not enforce a no-contest clause because judges believe the will contestant should have his or her day in court.
Bringing a will contest can cause division and bitterness within a family, and it is often not worth the trouble. However, that does not dissuade some disgruntled family members from bringing a will contest if they are unhappy with what they will receive under the will. Suits are often filed over small amounts of property because family members care greatly about the issues involved and may have residual emotional baggage from earlier family interactions.
Depending on the laws of the state, there are three ways to contest a will: (1) by contesting it directly in a probate court; (2) by appealing the probate court’s order to a higher court; or (3) by filing a separate action in a court of equity. The statute of limitations for bringing a will contest varies from weeks to seven years.
Standing to Contest a Will
A will can be contested by any interested party, including heirs and beneficiaries. For example, an heir who could expect to receive property under the state’s laws of intestacy has standing to contest a will. Beneficiaries under a prior will can also contest a later will, unless the contesting party’s interest is the same or larger under the later will. A person who purchased property from an heir has standing to contest a will if it turns out that the seller is not a named beneficiary of the offered will. However, creditors of the deceased person cannot contest a will in probate court. Instead, creditors must file their claims with the executor and ask him or her to determine the validity of the claims. Creditors who disagree with the executor’s decision can ask for a ruling from the probate judge.
Grounds to Contest a Will
Generally, the grounds for contesting a will include the following allegations: (1) the will was not property executed; (2) the testator lacked capacity to draft a will; (3) the will was altered or is a forgery; (4) undue influence was exerted on the testator at the time the will was drafted; (5) the will was revoked; or (6) the testator was operating under a mistake when he or she drafted the will, and that renders the will invalid. No matter what grounds are asserted, there is no right to a jury trial in a will contest.
Improper Execution. Contesting a will based on improper execution is rarely successful because if the will is in writing, dated, signed by the testator, and witnessed by two or three competent persons, the execution procedure is almost always upheld.
Lack of Capacity. A testator lacks the capacity to draft a will if he or she is a minor, demented, or insane. In the early history of wills, the ancient Romans required that citizens be adults before they could draft a valid will, and that requirement has been adopted by all subsequent legal systems. Generally, the test has been applied to biological age rather than maturity or legal emancipation, so individuals need to be above a certain chronological age to draft a valid will. Usually, an adult has capacity to make a will if he or she can bring to mind assets owned, can recall the natural persons who should benefit from the estate, and can relate the assets and the persons who are the natural beneficiaries of the estate in his or her mind during the drafting of a will.
Dementia can render a will invalid, even though the testator is of age, if he or she is senile, lacks sufficient memory, or suffers some other intellectual deficiency that precludes his or her making a valid will. Individuals suffering from mental illness may not be able to execute a valid will if they do not have rational capacity, or if they are acting under a delusion that renders the will invalid. An individual contesting the testator’s capacity will typically offer expert testimony from a physician and analysis of medical records. However, lay witnesses such as friends and neighbors can also offer testimony to show a testator lacked the mental ability to draft a valid will.
Forgery or Fraud. Forgery and fraud are uncommon claims in will contests although some lawyers have been implicated in plots to defraud beneficiaries by forging a will after the client died. Evidence that a will was forged can be circumstantial, such as the naming of unusual beneficiaries, analysis of the testator’s signature, cross examination of attesting witnesses, and testimony from friends and family members who swear that the decedent never drafted a will. Fraud claims are often associated with allegations of undue influence or lack of capacity to draft a will. There are two types of fraud associated with allegations of a defective will: fraud in the inducement, which happens when someone makes a false statement of fact and convinces a testator to draft a will different from what he or she would ordinarily intend; and fraud in the execution, which means someone lied about the actual instrument the testator signed.
Fraud in the inducement could happen if someone told the testator his child had said bad things about him, inducing the testator to leave that child out of the will. Fraud in the execution happens if the testator’s attorney tells him or her that the instrument the testator is signing is a true and correct copy of the will when it is in fact a different document. Fraud in the inducement or execution generally happens to older individuals who do not understand what they are doing and trust the wrong person.
Undue influence. A common claim in a will contest is that the testator was subjected to undue influence when he or she drafted a will. Next to lack of capacity, undue influence is the most common claim in a will contest. Often lack of capacity and undue influence are alleged together because they often happen at the same time in the drafting of a defective will. Undue influence is usually proved by circumstantial evidence showing that: (1) the influencer had the opportunity to pressure the testator; (2) the testator was subject to undue influence because he or she had impaired cognitive function; (3) the influencer was disposed to use his or her influence to alter the terms of the will; and (4) the result of the contested will is different from what would normally be expected and appears to be the result of improper influence.
Undue influence occurs when someone the testator trusts pressures him or her to draft a will different from what the testator intended. Lack of capacity generally occurs along with undue influence because a person who is older and has declining cognitive function is easier to influence than someone younger and of sound mind. Will contests that allege undue influence often involve older individuals who are taken advantage of by a friend, relative, or professional. Often, the claim is that a housekeeper, caretaker, or a new “friend” unduly influenced an older person to leave money to him or her rather than to the family. Most cases alleging undue influence concern the naming of unnatural beneficiaries, such as when the testator leaves money to someone outside his or her family. Examples of undue influence include wills where the testator left everything to his attorney, doctor, priest, guardian, housekeeper, or a girlfriend, rather than to his spouse and children, who are the natural beneficiaries of the estate.
Influence has to be unreasonable rather than simply the result of natural affection for a caretaker. For example, if the decedent leaves a tidy sum to someone who diligently cared for him for several years before he died, that situation is understandable and, by itself, would not ordinarily be considered undue influence by a probate judge. Similarly, it is generally not considered indicative of undue influence if a decedent leaves everything to a spouse because a spouse is a natural object of a person’s bounty. In contrast, bequests to new romantic interests may draw suspicion of undue influence, especially if the testator leaves nothing to his family.
Revocation
Revocation can be shown by mutilation of the will, a notation of revocation on the face of the document, evidence of a testator’s intent to revoke the will, or testimony that the original will cannot be found.
Conclusion
After wills became a popular way to distribute land and personal property, English and American courts needed a systematic way to determine if a will was valid. English courts borrowed from the early Roman practice of validating a will under seals to develop formal probate procedures, and American courts adopted similar probate practices from English common law courts. These probate practices are designed to ensure that the decedent’s property is distributed in accordance with his or her genuine wishes and allows beneficiaries to establish clean title. Thus, the probate process continues to serve important personal and societal interests, just as it did in ancient times.
ENDNOTES
1 Probate, Black’s Law Dictionary (6th ed. 1990).
2 Julie Garber, What Happens During the Probate Process? The Balance (Mar. 4, 2020), https://www/thebalance.com/what-is-probate-3505244 (last visited April 20, 2020).
3 Randolph Richards, A Scroll with Seven Seals (July 21, 2016), https://randolphrichards.com/2016/07/21/a-scroll-with-seven-seals/ (last visited April 20, 2020).
4 Eugene M. Haertle, The History of the Probate Court, 45 Marq. L. Rev. 546, 546- 50 (1962).
5 Id.
6 Garber, supra note 2.
7 Rania Combs, Why Should My Will Include a Self-Proving Affidavit (May 16, 2018), https://texaswillsandtrustlaw.com/2018/05/16/why-should-my-will-include-aself-proving-affidavit/ (last visited April 20, 2020).
8 Rania Combs, Is It Possible to Probate a Lost Will?(Oct. 10, 2012), https://texaswillsandtrustlaw.com/2012/10/10/is-it-possible-to-probate-a-lost-will/ (last visited April 20, 2020).
9 Julie Garber, How to Contest a Will, The Balance (Aug. 6, 2019) https://www. thebalance.com/how-to-contest-a-will-3504867 (last visited April 20, 2020).
10 Id.
11 Jose Rivera, Testamentary Capacity in Drafting a Will, Legal Match (Sept. 4, 2019, 01:15:45) https://www.legalmatch.com/law-library/article/mental-competency-in-drafting-a-will.html (last visited April 20, 2020).
12 Garber, supra note 9.
13 Probate Fraud and Will Forgery, DAS Law Blog (April 2018), https://www.daslaw. co.uk/blog/probate-fraud-and-will-fraud (last visited on April 20, 2020).
14 Mary Joy Quinn, Defining Undue Influence (Feb. 1, 2014) https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_35/issue_3_feb2014/defining_undue_influence/ (last visited April 20, 2020).
15 Lee J. Alston & Morton O. Schapiro, Inheritance Laws Across Colonies: Causes and Consequences, 44 J. Econ. Hist. 277, 277-87 (1984).
Harry Munsinger practices collaborative and estate law in San Antonio. He holds a Ph.D. in psychology from the University of Oregon, was a Post-Doctoral Fellow at Yale, and earned a law degree at Duke where he served on the Law Journal. Harry was an Adjunct Law Professor at the University of Texas and at St. Mary’s University.
