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Wills cannot be challenged until testator dies, Md. appeals court says

The contents of a person’s will and related revocable trust cannot be challenged in court until he or she has died, Maryland’s second highest court ruled last week in rejecting a daughter’s bid to revive an undue-influence challenge to her estranged and ailing mother’s decision to write her out of her will.

In its reported decision, the Court of Special Appeals said a will or revocable trust is only a draft document unit its drafter, or testator, has died. Thus, those challenging a living person’s will or trust would be merely “presumptive heirs” who have no legal standing to challenge a legal document that is not yet final, the court added in its 3-0 ruling.

The court said the standing issue is one of first impression in Maryland and quoted from Iowa Supreme Court and New York federal district court rulings that explained why legal challenges to wills are unripe until the testator has died.

“’Pre-death challenges to wills may be a waste of time – the testator might replace the will with a new one, die without property, or the challenger might die before the testator,’” Judge Andrea M. Leahy wrote for the Court of Special Appeals. “Thus, as a matter of ripeness, when the testator is ‘currently alive, issues involving the validity of [the testator’s] Last Will and Testament are likely not even ripe for adjudication by any court’ because ‘it is premature to interpret or invalidate a will that has not yet been admitted to probate because the testator is still alive.’ ”

The lack of standing before death is also reflected in Maryland’s Estates and Trusts Article, which expressly states that a will can be challenged via a petition filed within six months after a personal representative’s appointment, the Court of Special Appeals said. A representative, however, can be appointed only after the testator has died, the court added.

The appellate court’s decision marked a second defeat for Amy Silverstone, whose legal challenge to her mother Andrea Jacobson’s will was dismissed by a Montgomery County Circuit Court judge for lack of standing.

Silverstone contended the will should be declared void based on her claim that Lisa Lipps, her aunt and Jacobson’s sister, unduly influenced Jacobson, who suffers from dementia and memory impairment.

This undue influence led Jacobson to change her will in 2018 to expressly “disinherit” Silverstone and her son, Bryce, Jacobson’s grandson, Silverstone alleged. The new will stated that Silverstone and Bryce shall not “in any way be a beneficiary of or receive any portion of the trust or the grantor’s estate.”

The disinheritance came amid a falling out between mother and daughter, according to court papers.

In one acrimonious exchange, Silverstone texted her mother that it was “awful and disgusting that money is more important to you than your relationship with Bryce and I.” Jacobson responded that “money is only a part of it,” adding that “I never hear from you unless you want something.”

Family acrimony aside, the Court of Special Appeals stated that Silverstone’s challenge to the will and related trust is premature while her mother is alive.

“Amy lacks standing because she has no property interest in her mother’s trust assets or potential probate estate other than a remote claim as a presumptive intestate heir,” Leahy wrote.

“Moreover, Amy’s claims may well be unripe because Andrea could, to the extent she is sufficiently lucid, execute another will or trust amendment or simply run out of assets, thus making this matter future, contingent and uncertain,” Leahy added. “When Andrea passes, Amy will have statutory standing. … Until that time, however, Amy lacks standing, and the circuit court correctly dismissed her undue-influence challenge to Andrea’s will and revocable trust agreement on those grounds.”

Silverstone’s attorney, Richard D. Paugh of Rockville, said he and his client will not seek review by the Court of Appeals. Paugh declined to comment on the Court of Special Appeals’ decision.

Jacobson’s attorney, Patrick J. Kearney, said he was not surprised by the court’s decision that a will cannot be challenged until the testator dies.

“I have always taken the position you just can’t do it,” said Kearney, of counsel at Selzer Gurvitch Rabin Wertheimer & Polott PC in Bethesda.

A will, prior to death, is “not a grant of a right in property,” Kearney added.

Lipps’ lawyer, Stephanie L. Fink, did not immediately return a telephone message Monday seeking comment on the Court of Special Appeals’ decision.

Fink is with Fierst & Fink PC in Rockville.

Neither Jacobson’s attorney, Christine M. Sorge, nor Lipps’ attorney, Stephanie L. Fink, immediately returned telephone messages Monday seeking comment on the decision. Sorge is with Selzer Gurvitch Rabin Wertheimer & Polott PC in Bethesda. Fink is with Fierst & Fink PC in Rockville.

Leahy was joined in the opinion by Judges Kevin F. Arthur and J. Frederick Sharer, a retired jurist sitting by special assignment.

The Court of Special Appeals issued its decision in In the Matter of Andrea Jacobson, No.1741, September Term 2021.