Will Contest / Caveat Petition

WILL CONTEST / CAVEAT PETITION — DELAWARE

TABLE OF CONTENTS

1. Pre-Filing Investigation Checklist
2. Caveat Against Allowance of Instrument as Will (12 Del. C. § 1308)
3. Petition for Review of Proof of Will (12 Del. C. § 1309)
4. Verification
5. Certificate of Service
6. Burden of Proof and Deadlines (Delaware)
7. Delaware Practice Notes
8. Sources and References

1. PRE-FILING INVESTIGATION CHECKLIST

A. Decedent and Will Background

• ☐ Full legal name of decedent: [________________________________]
• ☐ Date of death: [__/__/____]
• ☐ County of domicile at death (New Castle / Kent / Sussex): [________________________________]
• ☐ Date propounded will signed: [__/__/____]
• ☐ Whether will has been proved / admitted to probate and date of order: [__/__/____]
• ☐ Register of Wills estate / file number: [________________________________]
• ☐ Personal representative (executor / administrator) appointed (name / date): [________________________________] / [__/__/____]
• ☐ § 1309 deadline (date of probate order + 6 months): [__/__/____]

B. Capacity / Medical Investigation

• ☐ Treating physicians for 3 years pre-execution identified
• ☐ Medical, hospital, skilled-nursing, and hospice records ordered
• ☐ Cognitive testing (MMSE / MoCA / SLUMS) located
• ☐ Diagnosis of dementia, delirium, or psychosis identified
• ☐ Capacity expert retained (geriatric psychiatrist / neuropsychologist)

C. Prior Wills and Drafting History

• ☐ All prior wills and codicils located
• ☐ Pattern of dispositions analyzed (sudden change favoring new beneficiary?)
• ☐ Drafting attorney identified and file requested: [________________________________]
• ☐ Attesting witnesses and notary identified and located
• ☐ Self-proving acknowledgment / affidavit (12 Del. C. § 1305) reviewed

D. Undue Influence Indicators

• ☐ Vulnerability of decedent (age, illness, isolation, dependence)
• ☐ Influencer's role (caregiver, fiduciary, family member, agent under POA)
• ☐ Confidential relationship established
• ☐ Active procurement / suspicious circumstances surrounding the will
• ☐ Inequitable / unnatural result

E. Standing and Pre-Mortem Validation

• ☐ Contestant's interest documented (heir who would take in intestacy or devisee under another will)
• ☐ Whether contestant appeared at the proof or was served under § 1303 (affects § 1309 eligibility)
• ☐ Whether the will was pre-mortem validated under § 1311 (may bar contest by duly notified persons)

2. CAVEAT AGAINST ALLOWANCE OF INSTRUMENT AS WILL (12 DEL. C. § 1308)

2.1 CAPTION

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

REGISTER OF WILLS FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

FILE NO. [________________________________]

CAVEAT AGAINST ALLOWANCE OF INSTRUMENT AS WILL (12 Del. C. § 1308)

[CAVEATOR'S NAME] ("Caveator"), an interested person, files this Caveat against the allowance and probate of the instrument dated [__/__/____] purporting to be the last will and testament of [DECEDENT'S NAME] (the "Propounded Instrument"), and states:

2.1.1 Decedent [NAME] died on [__/__/____], domiciled in [COUNTY] County, Delaware.

2.1.2 Caveator is the [relationship — e.g., surviving spouse / child / heir / devisee under a prior will dated __/__/____] of the decedent and would be adversely affected by allowance of the Propounded Instrument. Caveator is interested within the meaning of 12 Del. C. § 1308.

2.1.3 No order of probate has yet been entered. This Caveat is filed before the entry of an order of probate as permitted by 12 Del. C. § 1308(a).

2.1.4 Caveator objects to allowance of the Propounded Instrument on the grounds set forth in Section 2.2, each pled in the alternative, and requests that the Court appoint a time for hearing, award citations to all interested parties, and order service or publication of notice as provided in 12 Del. C. § 1303.

2.2 GROUNDS

FIRST — Lack of Testamentary Capacity (12 Del. C. § 201). At the time of execution the decedent was not of sound and disposing mind and memory as required by 12 Del. C. § 201, in that the decedent was unable to comprehend the nature and extent of the decedent's property, the persons who were the natural objects of the decedent's bounty, or the nature of the testamentary act and its effect. Specifically: [state facts — diagnosis, age, cognitive findings].

SECOND — Undue Influence. The Propounded Instrument is the product of undue influence exercised over the decedent by [ALLEGED INFLUENCER]. A susceptible testator, an opportunity to exert influence, a disposition to do so for an improper purpose, and an unnatural result favoring the influencer are present, together with the influencer's [confidential relationship with decedent / active procurement of the instrument]. Specifically: [state facts].

THIRD — Fraud / Duress. The Propounded Instrument was procured by [fraud in the execution / fraud in the inducement / duress] in that [state facts].

FOURTH — Improper Execution (12 Del. C. § 202). The Propounded Instrument was not executed in compliance with 12 Del. C. § 202 in that it was not [(a) in writing and signed by the testator (or by another subscribing the testator's name in the testator's presence and at the testator's express direction); or (b) attested and subscribed in the testator's presence by two or more credible witnesses]. A will not complying with § 202 is void.

FIFTH — Revocation / Later Will. The Propounded Instrument was revoked before decedent's death by [a later will or codicil dated __/__/____ / a physical act of revocation], or has been superseded by a valid later will dated [__/__/____].

2.3 PRAYER FOR RELIEF

WHEREFORE, Caveator requests that the Court:

A. Appoint a time for hearing on this Caveat and award citations to all interested parties (12 Del. C. § 1308(a));

B. Deny allowance of the Propounded Instrument as the will of the decedent;

C. Admit to probate any valid prior or later will, or adjudge the decedent intestate and appoint an administrator;

D. Determine and decree the costs occasioned by this Caveat (12 Del. C. § 1308(b)); and

E. Grant such other relief as is just.

Date: [__/__/____]

[________________________________]
[ATTORNEY NAME, DE Bar No.]
Attorney for Caveator

3. PETITION FOR REVIEW OF PROOF OF WILL (12 DEL. C. § 1309)

3.1 CAPTION

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

REGISTER OF WILLS FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

FILE NO. [________________________________]

PETITION FOR REVIEW OF PROOF OF WILL (12 Del. C. § 1309)

[PETITIONER'S NAME] ("Petitioner") petitions the Court of Chancery for review of the proof of will under 12 Del. C. § 1309, and states:

3.2 PARTIES, STANDING, AND TIMELINESS

3.2.1 Petitioner [NAME] resides at [ADDRESS] and is a person interested in the estate as the [relationship / pecuniary interest — e.g., heir who would take in intestacy / devisee under a prior will dated __/__/____].

3.2.2 Decedent [NAME] died on [__/__/____], domiciled in [COUNTY] County, Delaware.

3.2.3 An instrument dated [__/__/____] (the "Will") was proved before the Register of Wills and admitted to probate by order entered [__/__/____]. Letters [testamentary / of administration] were granted to [PERSONAL REPRESENTATIVE] on [__/__/____].

3.2.4 Petitioner did not voluntarily appear at the taking of the proof of the Will and was not served with citation or notice as provided in 12 Del. C. § 1303. Petitioner is therefore entitled to a right of review under 12 Del. C. § 1309(a).

3.2.5 This Petition is filed within 6 months after the entry of the order of probate as required by 12 Del. C. § 1309(a). The order of probate was entered [__/__/____]; the deadline is [__/__/____].

3.2.6 The Will was [not / __] validated during the testator's lifetime under the pre-mortem will validation procedure of 12 Del. C. § 1311, and Petitioner is not barred from contesting it.

3.3 GROUNDS FOR REVIEW

Upon review, the proceedings are the same as upon a caveat (12 Del. C. § 1309(a)). Petitioner contests the Will on the following grounds, each pled in the alternative:

FIRST — Lack of Testamentary Capacity (12 Del. C. § 201). At execution the decedent was not of sound and disposing mind and memory: [state facts].

SECOND — Undue Influence. The Will is the product of undue influence by [ALLEGED INFLUENCER] (susceptibility + opportunity + disposition + unnatural result; confidential relationship and active procurement): [state facts].

THIRD — Fraud / Duress. [State facts.]

FOURTH — Improper Execution (12 Del. C. § 202). The Will fails the requirements of § 202 (writing; signature; attestation and subscription by two or more credible witnesses in the testator's presence) and is therefore void: [state facts].

FIFTH — Revocation / Later Will. The Will was revoked or superseded by [a later will or codicil dated __/__/____ / a physical act of revocation]: [state facts].

3.4 PRAYER FOR RELIEF

WHEREFORE, Petitioner requests that the Court of Chancery:

A. Order review of the proof of the Will under 12 Del. C. § 1309 and conduct the same proceedings as upon a caveat;

B. Reject the Will and revoke the letters granted to the personal representative, rather than affirm the allowance of the Will (12 Del. C. § 1309(a));

C. Admit to probate any valid prior or later will, or adjudge the decedent intestate and direct issuance of letters of administration;

D. Determine and decree the costs occasioned by this review (12 Del. C. § 1309(b)); and

E. Grant such other relief as is just.

Date: [__/__/____]

[________________________________]
[ATTORNEY NAME, DE Bar No.]
Attorney for Petitioner

4. VERIFICATION

STATE OF [________________________________] )
) ss.
COUNTY OF [________________________________] )

I, [CAVEATOR'S / PETITIONER'S NAME], being duly sworn according to law, depose and state that I am the [Caveator / Petitioner] in the foregoing [Caveat / Petition for Review of Proof of Will], that I have read it, and that the facts stated in it are true and correct to the best of my knowledge, information, and belief.

[________________________________]
[SIGNATURE]

SWORN TO AND SUBSCRIBED before me on [__/__/____].

[________________________________]
Notary Public
My commission expires: [__/__/____]

(SEAL)

5. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing was served on the following persons by the method indicated, consistent with 12 Del. C. § 1303 and the Court of Chancery Rules:

[________________________________]
[SIGNATURE OF ATTORNEY / SERVER]

6. BURDEN OF PROOF AND DEADLINES (DELAWARE)

6.1 Burden of Proof

A self-proved will under 12 Del. C. § 1305 enjoys a conclusive presumption of compliance with the signature requirements and a rebuttable presumption of the other execution requirements, and is admitted to probate absent proof of fraud or forgery affecting the acknowledgment or affidavit (12 Del. C. § 1306).

6.2 Deadlines

• Caveat (§ 1308): may be filed at any time before the entry of an order of probate. Once an order of probate is entered, the caveat route closes and review must proceed under § 1309.
• Petition for review of proof of will (§ 1309): must be filed within 6 months after the entry of the order of probate, and only by an interested person who did not voluntarily appear at the proof and was not served with citation or notice under § 1303.
• Pre-mortem validation bar (§ 1311): if the testator validated the will during life and duly notified a person who did not contest within 120 days, that person may be barred from a later § 1308 or § 1309 proceeding. Check whether § 1311 applies.

7. DELAWARE PRACTICE NOTES

1. Court of Chancery exercises probate jurisdiction. The Register of Wills functions as an ex officio Clerk of the Court of Chancery. A caveat or a § 1309 review is heard in the Court of Chancery; both proceed "as upon a caveat."

2. Pick the right vehicle based on timing. Before an order of probate, file a § 1308 caveat. After probate, and within 6 months, file a § 1309 petition for review — but only if you neither appeared at the proof nor were served under § 1303. A person who appeared or was served generally cannot use § 1309; preserve objections through the original proof proceeding or other relief.

3. Six months is a hard outer limit. The § 1309 right of review is lost six months after the order of probate. Calendar the deadline from the date of the probate order, not the date of death or the date of discovery.

4. Self-proved wills (§§ 1305–1306). A self-proving acknowledgment shifts the practical burden; plan to rebut it with evidence of incapacity, undue influence, fraud, or forgery affecting the acknowledgment or affidavit.

5. Improper execution renders the will void (§ 202(b)). Delaware requires a writing, the testator's signature (or a signature by another at the testator's express direction and in the testator's presence), and attestation/subscription by two or more credible witnesses in the testator's presence. An interested witness does not invalidate the will (§ 203).

6. Standing. A contestant must be a "person interested" — typically an intestate heir or a devisee under a competing instrument who would benefit if the propounded will fails. Plead the pecuniary interest with specificity.

7. Costs. The Court of Chancery may assess the costs occasioned by the caveat or review (§§ 1308(b), 1309(b)). Counsel should advise the client on fee exposure and any no-contest clause in the will before filing.

8. SOURCES AND REFERENCES

• 12 Del. C. § 1308 — Caveat against allowance of instrument as will; procedure: https://law.justia.com/codes/delaware/title-12/chapter-13/section-1308/
• 12 Del. C. § 1309 — Review of proof of will; procedure: https://law.justia.com/codes/delaware/title-12/chapter-13/section-1309/
• 12 Del. C. § 1303 — Proof of will; notice; citation: https://delcode.delaware.gov/title12/c013/index.html
• 12 Del. C. § 1311 — Pre-mortem will validation: https://codes.findlaw.com/de/title-12-decedents-estates-and-fiduciary-relations/de-code-sect-12-1311.html/
• 12 Del. C. § 201 — Who may make a will (capacity): https://law.justia.com/codes/delaware/title-12/chapter-2/subchapter-i/section-201/
• 12 Del. C. § 202 — Execution of will (writing; signature; two credible witnesses; void if noncompliant): https://delcode.delaware.gov/title12/c002/sc01/
• 12 Del. C. § 203 — Interested witness: https://delcode.delaware.gov/title12/c002/sc01/
• 12 Del. C. § 1305 — Self-proved will; 12 Del. C. § 1306 — Effect of self-proved will: https://delcode.delaware.gov/title12/c013/index.html
• In re Will of Melson, 711 A.2d 783 (Del. 1998) (undue influence; burden shifting)
• Delaware Court of Chancery Rules and Register of Wills practice (verify before filing)