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PROBATE 48: Decedent intentionally made no provision for son in her will.

Decedent had three children: petitioner and respondents. At some point, decedent went to her attorney and instructed him to draft a will for her. He did so after discussing the matter with decedent, and decedent executed the will. Decedent nominated respondents as co-personal representatives, bequeathed her entire estate to respondents, and indicated that she intentionally made no provision for petitioner.

Petition for Probate

Petitioner filed a petition for probate and requested that the probate court appoint him as a special personal representative of decedent’s estate. Petitioner acknowledged that decedent had executed a will before her death. However, petitioner alleged that decedent lacked the capacity to make a will and was under undue influence at the time. A special representative was necessary to allow Petitioner to investigate and to obtain necessary information to determine if further proceedings are necessary.

Respondents opposed the petition, arguing that petitioner was aware that decedent had appointed respondents as co-personal representatives and that all of decedent’s assets had already been distributed to the proper beneficiaries.

Hearing on Petition

At the hearing on the petition, petitioner’s counsel did not present any evidence. Instead, petitioner requested a continuance to allow for discovery. The probate court denied petitioner’s requests, denied the relief sought in the petition, and dismissed the matter.

At the hearing, petitioner’s counsel expressed a need for discovery regarding decedent’s longstanding mental health issues, explaining that there had been a lack of transparency on the part of respondents. Although it would have been proper for petitioner to engage in discovery after the petition was filed, the record contains no evidence that petitioner made any effort to obtain discovery. Specifically, there is no evidence that petitioner sought subpoenas for decedent’s medical records, attempted to depose respondents, timely obtained affidavits, or otherwise sought information to support the petition. Petitioner did not even prepare and present his own affidavit to the probate court.

Summary Disposition

Summary disposition is appropriate if further discovery does not stand a reasonable chance of uncovering factual support for the opposing party’s position. The probate court dismissed based on a lack of evidentiary support and insufficient information even alleged in the Petition.

Do Not Face Probate Litigation on Your Own

Aldrich Legal Services represents clients in a wide range of probate litigation matters. Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel.

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