AGATHA CHRISTIE, PROBATE LITIGATOR: PROVING A WILL CONTEST THROUGH CIRCUMSTANTIAL EVIDENCE

By Michael B. McNaughton, Esq.^*

The next best thing to a good murder mystery is . . . a will contest. All the elements are present: the victim (the deceased testator); a suspect (the will’s proponent); interested friends, neighbors and caretakers (each with his or her own opinions, motives and versions of events); and the "smoking gun" (in this case, the will itself).

The mystery for the judge¹ to solve is to determine how the will – often created near the time of death and drastically changing the deceased’s long-established estate plans – came to be. Was it the volitional act of a competent testator? The product of undue pressure by a caretaker or confidant? The scribblings of a delusional man? What role did greed or sex play?

As with any murder mystery, there is rarely any direct evidence in a will contest. The victim, of course, is dead. The suspect, if the contestant’s theory is correct, certainly cannot be trusted. And no other witness likely was present during the critical events, which usually began sometime prior to the actual signing of the instrument. With this scene in place, how can a probate litigator prove that the will was the result of foul play? This article identifies some of the problems of proof that the contestant must overcome; some of the statutory and common law rules available to meet his or her burden; and some practice techniques that will assist a probate litigator to successfully prosecute a will contest.