THE FUNCTION OF WILL CONTESTS

Authors

Lewis M. Simes, University of Michigan Law SchoolFollow

Abstract

To anyone steeped in the doctrines of the common law there is something anomalous about the will contest. First, the will is duly admitted to probate in a proceeding which is almost universally conceded to be judicial. Then at a subsequent time a so-called contest is brought by the heir, in which the precise proposition determined on the probate is retried. In most jurisdictions the heir is not bound to make any sort of a showing to entitle him to contest. He need not allege newly discovered evidence. He need not submit any evidence of · fraud or mistake. Indeed, in some states, he may even have attended the original probate proceeding and sat by without a murmur of dissent while the will was judicially approved. Yet the law says he may now, merely for the asking, wipe out the effect of the decree admitting the will to probate and have the whole matter heard anew. This is not appeal in any true sense of the word, though in many jurisdictions it is called an appeal with trial de novo; nor is it a hearing on certiorari, though such a hearing may sometimes be granted by a still higher court with respect to the contest itself. It is not a new trial for cause; since, in most states, no cause need be shown. It is, in short, a unique sort of hearing which finds its only justification as a part of a legal system in the uniqueness of the matters with which it deals.

Recommended Citation

Lewis M. Simes, THE FUNCTION OF WILL CONTESTS, 44 Mich. L. Rev. 503 (1946).
Available at: https://repository.law.umich.edu/mlr/vol44/iss4/2