A disagreement that occurs during probate or the administration process can lead to litigation before the District Court judge. A dispute can involve any of the parties involved in the probate proceeding including the personal representative, other fiduciaries, beneficiaries, heirs, and creditors. Ideally the parties to a probate dispute will be able to settle it on their own without the court getting involved. However, if that is not possible, then the dispute would have to be settled by the District Court that is handling the probate proceeding. Disputes during probate are concerning as they can lead to litigation, added cost to the estate, and delay asset distribution. However, probate litigation made be necessary to resolve legitimate disputes and to ensure the integrity of the process.
A will contest is one of the most common types of probate disputes. Typically, it occurs early in the process when the will is submitted to the District Court along with a petition for probate. Initiating probate triggers notification of beneficiaries and heirs. If someone believes that the will that was submitted is not valid because of the circumstances of its execution or because there is a more recently executed will, they have the right to object to the will and initiate a will contest. The reasons for a will contest include:
- Lack of testamentary capacity. Typically a lack of testamentary capacity objection means that the objectant believes that the testator suffered from a medical condition such as dementia or a stroke such that at the time they executed the will they did not understand the impact of making that particular will.
- Undue influence. It is illegal to take advantage of a vulnerable testator and manipulate them into adding terms to their will that reflect the will of the manipulator and not the testator.
- Duress. One of the basic principles of a will is that it reflects what the testator wishes. It is illegal to force someone to make certain provisions in their will. Doing so would invalidate the will.
- Revocation. The will was revoked by the execution of a new will, by a executing a document that revoked the will, or by any other method that would have the legal effect of revoking the will.
Breach of Fiduciary Duty
Personal representatives and other fiduciaries have a duty to perform their duties with honesty and care. If an interested party such as a beneficiary or heir believes that the fiduciary has failed to perform their duties are required, they can bring a lawsuit. Common reasons for fiduciary lawsuits include:
- Negligent investment of estate assets
- Ignoring a court order
- Illegal self-dealing
- Problems with an accounting
- Ignoring the terms of the will
If the personal representative is found to have acted improperly and as a result the estate suffered losses, they would be personally liable to the estate.
Elective Share Disputes
Another type of dispute that may develop during probate is between the surviving spouse and the personal representative over the spouse’s elective share. Under North Dakota law, spouses are entitled to a portion of the decedent’s estate regardless of what the will states. The spouse can either accept the terms of the will or elect to take the statutory elective share which is equal to 50% of the augmented estate. The spouse has up to 9 months to make the election. N.D.C.C. §30.1-05-05. If the spouse and the personal representative disagree as to the amount of the elective share, whether a proper election was made, or the right to the elective share, the court may have to rule on the matter.
If it is unclear as to whether someone is entitled to inherit the court may require a hearing to determine if a purported heir is indeed related to the decedent and entitled to inherit either under the will or under intestate succession.