Alabama Will Contest / Caveat Petition Package

ALABAMA WILL CONTEST / CAVEAT PETITION PACKAGE

Pre-Probate Contest (Probate Court) OR Post-Probate Contest (Circuit Court)

PART 1 — PRE-SUIT INVESTIGATION CHECKLIST

Client/Contestant: [________________________________]
Decedent: [________________________________]
Date of Death: [__/__/____]
County of Probate: [________________________________] County, Alabama
Probate Case No.: [________________________________]
Date of Admission to Probate (post-probate clock): [__/__/____]
Personal Representative / Executor: [________________________________]
Will Date: [__/__/____]
Six-Month Deadline (§ 43-8-199): [__/__/____]
Contest Track: ☐ Pre-Probate (Probate Court, § 43-8-198) ☐ Post-Probate (Circuit Court, § 43-8-199)

A. Standing — "Person Interested in Any Will" (Ala. Code § 43-8-190; § 43-8-199)

☐ Confirm contestant is "person interested" (heir, devisee under contested or prior will, creditor with pecuniary interest)
☐ Compute intestate share if contest succeeds
☐ Compute share under prior valid will
☐ Family tree / heirship chart
☐ Pecuniary interest exists ("any person interested" requires direct pecuniary interest — Burns v. Marshall)

B. The Contested Will

☐ Certified copy of will
☐ Application/petition to admit to probate
☐ Subscribing witnesses (Ala. requires two — § 43-8-131)
☐ Notary (if self-proved under § 43-8-132)
☐ Drafting attorney file
☐ Prior wills, codicils
☐ Original will inspection

C. Capacity Investigation (Ala. Code § 43-8-130)

☐ Medical records 5 years pre / 1 year post execution
☐ Treating physicians (PCP, neurology, psychiatry)
☐ Hospital admissions, discharge summaries
☐ Cognitive testing (MMSE, MoCA, neuropsych)
☐ Diagnoses: dementia, Alzheimer's, stroke, brain injury, delirium
☐ Pharmacy records — psychoactive meds
☐ Long-term care / assisted living chart
☐ Adult Protective Services (Ala. Dep't of Human Resources) records
☐ Banking irregularities
☐ Powers of attorney activations

D. Undue Influence Investigation — Wilson v. Wehunt (Ala. 1994)

Alabama recognizes a rebuttable presumption of undue influence when contestant proves:

☐ (1) Confidential relationship between favored beneficiary and testator
☐ (2) Beneficiary was dominant party in that relationship
☐ (3) Beneficiary's activity in procurement of the will

Once presumption arises, burden shifts to proponent to show will was not product of undue influence. Wilson v. Wehunt, 631 So. 2d 991 (Ala. 1994); Allen v. Sconyers, 669 So. 2d 113 (Ala. 1995).

Investigate:
☐ Confidential relationship — caregiver, child, attorney-in-fact, fiduciary
☐ Dominance — financial control, isolation, dependency
☐ Activity in procurement — selecting attorney, providing instructions, paying fees, present at execution
☐ Substantial benefit to influencer
☐ Unnatural disposition
☐ Decedent's susceptibility

E. Fraud / Duress

☐ Fraud in execution
☐ Fraud in inducement
☐ Duress / coercion
☐ Forgery

F. Improper Execution (Ala. Code § 43-8-131)

☐ Writing
☐ Signed by testator (or in name by another in conscious presence at testator's direction)
☐ Signed by at least two persons, each of whom witnessed the signing OR testator's acknowledgment of signature or will
☐ Self-proving affidavit defects (§ 43-8-132)
☐ Holographic wills — Alabama does NOT recognize unattested holographic wills

G. Revocation (Ala. Code § 43-8-136)

☐ Subsequent inconsistent will/codicil
☐ Physical act of revocation by testator
☐ Operation of law (e.g., divorce — § 43-8-137)
☐ Lost will / spoliation

H. No-Contest Clause

☐ Identify in terrorem clause
☐ Alabama: enforced but probable cause exception recognized

I. Litigation Hold

☐ Preservation letters
☐ ESI preservation
☐ Decedent's electronic devices and accounts

PART 2 — CAVEAT / NOTICE OF CONTEST (PRE-PROBATE — Ala. Code § 43-8-198)

STATE OF ALABAMA
[________________] COUNTY
PROBATE COURT

CAVEAT AND CONTEST OF WILL BEFORE PROBATE (Ala. Code § 43-8-190; § 43-8-198)

NOW COMES [CONTESTANT'S NAME], a person interested in the Estate of [DECEDENT], and files this Caveat and Contest of Will Before Probate, and states as follows:

1. [CONTESTANT] is an interested person under Ala. Code § 43-8-190, being [☐ surviving spouse / ☐ child / ☐ heir at law / ☐ devisee under prior will dated __/__/____].

2. The document dated [__/__/____] propounded as the Last Will and Testament of [DECEDENT] (the "Purported Will") should NOT be admitted to probate on the following grounds: ☐ lack of testamentary capacity ☐ undue influence ☐ fraud ☐ duress ☐ improper execution ☐ revocation ☐ other: [________________________________].

3. Contestant demands trial by jury under Ala. Code § 43-8-189.

WHEREFORE, Contestant prays that the Court (a) deny admission of the Purported Will to probate; (b) set this matter for jury trial under § 43-8-189; and (c) grant such further relief as is just.

Dated: [__/__/____]

_______________________________
[CONTESTANT / COUNSEL]
Alabama Bar No.: [________]
[Firm Name and Address]

PART 3 — VERIFIED COMPLAINT TO CONTEST WILL IN CIRCUIT COURT (POST-PROBATE — Ala. Code § 43-8-199)

STATE OF ALABAMA
[________________] COUNTY
IN THE CIRCUIT COURT

Civil Action No.: [________________________________]

VERIFIED COMPLAINT TO CONTEST WILL

Plaintiff [CONTESTANT'S FULL NAME], by counsel, pursuant to Ala. Code § 43-8-199, sues Defendants and alleges:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff is a resident of [________________], Alabama, and an interested person under § 43-8-199, being [relationship].

2. Decedent [DECEDENT'S FULL NAME] died on [__/__/____], while domiciled in [________________] County, Alabama, at age [____].

3. Defendant [EXECUTOR] is the duly appointed Executor of the Estate.

4. The remaining Defendants are devisees under the Purported Will and/or heirs at law.

5. On [__/__/____], the Probate Court of [________] County admitted to probate a document dated [__/__/____] (the "Purported Will").

6. This Complaint is filed within six (6) months of admission to probate as required by Ala. Code § 43-8-199. The Circuit Court has jurisdiction under § 43-8-199 and venue under § 6-3-2.

II. INTERESTED PERSONS AND DEVISEES

III. FACTUAL BACKGROUND

7. Decedent's family is comprised of: [________________________________].

8. On [__/__/____], Decedent executed a prior will (the "Prior Will") providing: [________________________________].

9. On [__/__/____], approximately [____] before death, the Purported Will was executed under the following circumstances: [________________________________].

10. Material differences between Prior Will and Purported Will: [________________________________].

11. At execution, Decedent suffered from: [________________________________].

IV. GROUNDS FOR CONTEST

COUNT ONE — LACK OF TESTAMENTARY CAPACITY (Ala. Code § 43-8-130)

12. Plaintiff incorporates paragraphs 1–11.

13. At the time of execution, Decedent lacked testamentary capacity in that Decedent could not (a) know nature and extent of property; (b) know natural objects of bounty; (c) understand the testamentary act; or (d) form a rational plan, as required by Clifton v. Clifton, 529 So. 2d 980 (Ala. 1988).

14. Decedent suffered from [diagnosis: ____________________], rendering Decedent incapable of executing a valid will.

COUNT TWO — UNDUE INFLUENCE (Wilson v. Wehunt)

15. Plaintiff incorporates paragraphs 1–14.

16. [ALLEGED INFLUENCER] exerted undue influence over Decedent that destroyed Decedent's free agency. A presumption of undue influence arises under Wilson v. Wehunt, 631 So. 2d 991 (Ala. 1994), because Plaintiff can prove:

a. Confidential relationship: [ALLEGED INFLUENCER] was Decedent's [caregiver / child / attorney-in-fact / fiduciary], occupying a confidential relationship;
b. Dominant party: [ALLEGED INFLUENCER] was the dominant party, controlling Decedent's [finances / medications / residence / social access];
c. Activity in procurement: [ALLEGED INFLUENCER] [selected the attorney / instructed drafting / paid fees / was present at execution / transported Decedent].

17. The presumption shifts the burden to Proponent to prove the Purported Will was not the product of undue influence; Proponent cannot meet that burden.

COUNT THREE — FRAUD AND/OR DURESS

18. Plaintiff incorporates paragraphs 1–17.

19. The Purported Will was procured by fraud and/or duress in that [________________________________].

COUNT FOUR — IMPROPER EXECUTION (Ala. Code § 43-8-131)

20. Plaintiff incorporates paragraphs 1–19.

21. The Purported Will fails the requirements of § 43-8-131 because [☐ not in writing / ☐ not signed by testator / ☐ fewer than two witnesses / ☐ witnesses did not witness signing or acknowledgment / ☐ self-proving affidavit defective].

COUNT FIVE — REVOCATION (Ala. Code § 43-8-136)

22. Plaintiff incorporates paragraphs 1–21.

23. The Purported Will was revoked by [☐ subsequent will dated __/__/____ / ☐ physical act / ☐ operation of law].

V. JURY DEMAND

24. Plaintiff DEMANDS TRIAL BY JURY of all issues so triable under Ala. Code § 43-8-189 and Ala. R. Civ. P. 38.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays this Court:

A. Set aside the order admitting the Purported Will to probate;
B. Declare the Purported Will invalid;
C. Direct that the Estate be administered under the Prior Will dated [__/__/____] OR as intestate succession;
D. Order an accounting from the Executor;
E. Award costs and reasonable attorney fees to the extent permitted;
F. Grant such other and further relief as is just.

Dated: [__/__/____]

Respectfully submitted,

_______________________________
[ATTORNEY NAME], Ala. Bar No. [________]
[Firm Name and Address]
[Phone] | [Email]
Attorney for Plaintiff

PART 4 — VERIFICATION

STATE OF ALABAMA
COUNTY OF [________________]

Before me, the undersigned Notary, personally appeared [CONTESTANT'S FULL NAME], who, after being duly sworn, stated under oath: I am the Plaintiff in the foregoing Verified Complaint; I have read the same; and the factual allegations are true and correct to the best of my knowledge, information, and belief.

_______________________________
[CONTESTANT'S NAME]

Sworn to and subscribed before me this [____] day of [________________], [______].

_______________________________
Notary Public, State of Alabama
My commission expires: [__/__/____]

[NOTARY SEAL]

PART 5 — NOTICE TO INTERESTED PERSONS / SUMMONS

STATE OF ALABAMA
[________________] COUNTY
IN THE CIRCUIT COURT

Civil Action No.: [________________________________]

SUMMONS / NOTICE

TO EACH DEFENDANT NAMED ABOVE:

You are hereby summoned to file with the Clerk of this Court and serve upon Plaintiff's counsel a written Answer to the Verified Complaint to Contest Will within thirty (30) days after service. Failure to do so may result in entry of judgment against you for the relief demanded.

The Complaint contests the validity of the Last Will and Testament of [DECEDENT] admitted to probate on [__/__/____].

Service shall be made under Ala. R. Civ. P. 4 on each defendant; constructive service on unknown heirs by publication once a week for four (4) consecutive weeks under Ala. R. Civ. P. 4.3.

Dated: [__/__/____]

_______________________________
Clerk of the Circuit Court

PART 6 — DISCOVERY PLAN

A. Initial Disclosures

☐ Witnesses, documents, damages, insurance

B. Written Discovery (Ala. R. Civ. P. 26–36)

☐ Interrogatories
☐ Requests for Production:
☐ Drafting attorney's file
☐ Prior wills, codicils, trusts
☐ Financial records — 5 years
☐ Medical records — full release
☐ Long-term care / caregiver records
☐ Correspondence (paper, ESI)
☐ Device forensic images
☐ Requests for Admission

C. Subpoenas (Ala. R. Civ. P. 45)

☐ Drafting attorney
☐ Subscribing witnesses
☐ Notary
☐ Treating physicians
☐ Hospitals, SNFs, hospice
☐ Adult Protective Services
☐ Banks, brokerages, insurers
☐ Caregivers / home health

D. Depositions

☐ Executor, Proponent, Drafting Attorney, Witnesses, Notary, Physicians, Caregivers, Family, Capacity Expert, Document Examiner

E. Experts (Ala. R. Civ. P. 26(b)(4))

☐ Geriatric psychiatrist / neuropsychologist
☐ Forensic document examiner
☐ Pharmacology expert
☐ Estate-planning standard-of-care expert

F. ADR

☐ Mediation under Ala. Civ. Ct. Mediation Rules — frequently court-ordered

PART 7 — TRIAL-READY ELEMENTS AND BURDEN OF PROOF

A. Burden of Proof

B. Elements

Capacity (§ 43-8-130; Clifton v. Clifton): Sound mind at execution — know property, know natural objects, understand act, form orderly plan.

Undue Influence (Wilson v. Wehunt): Confidential relationship + dominant party + activity in procurement = presumption.

Fraud: Material misrepresentation, scienter, intent, reliance, causation.

Duress: Coercion overcoming free will at execution.

Improper Execution (§ 43-8-131): Writing, signature, two witnesses to signing or acknowledgment.

C. Trial Logistics

☐ Jury trial right under Ala. Code § 43-8-189 — preserve via timely demand (Ala. R. Civ. P. 38)
☐ Dead Man's Statute — Ala. Code § 12-21-163 (still applicable in some contexts; evaluate testimony of interested witnesses regarding transactions with decedent)
☐ Self-proving affidavit creates prima facie execution proof; rebuttal required
☐ Motions in limine, Daubert/Frye expert challenges
☐ Trial exhibits: capacity timeline, family tree, transfer chart, demonstratives
☐ Voir dire on aging, dementia, family dynamics, undue influence dynamics

PART 8 — SETTLEMENT AGREEMENT (FAMILY SETTLEMENT AGREEMENT)

FAMILY SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Family Settlement Agreement (the "Agreement") is entered into as of [__/__/____] by and among the undersigned (collectively, the "Parties"), each an interested person in the Estate of [DECEDENT], Probate Case No. [________________] (Probate Court, [________] County) and Civil Action No. [________________] (Circuit Court, [________] County), Alabama.

RECITALS

A. Decedent died on [__/__/____].
B. A document dated [__/__/____] (the "Purported Will") was admitted to probate on [__/__/____].
C. [CONTESTANT] filed a Verified Complaint contesting the Purported Will under Ala. Code § 43-8-199.
D. The Parties desire to compromise all disputes without further litigation.

AGREEMENT

1. Distribution. Notwithstanding the terms of the Purported Will or intestacy, the Estate shall be distributed as follows:

2. Withdrawal of Contest. Within ten (10) business days, [CONTESTANT] shall file a Stipulation of Dismissal with prejudice in the Circuit Court and a corresponding consent in the Probate Court.

3. Executor / PR. [NAME] shall serve.

4. Mutual Releases. The Parties release each other (including the Executor in individual and fiduciary capacities) from all claims relating to the Purported Will, the contest, and Estate administration through the Agreement date.

5. No Admission. Compromise of disputed claims; no liability admitted.

6. Court Approval. The Parties shall jointly submit the Agreement to the Probate and/or Circuit Court for approval where minors, incapacitated persons, or unborn/unascertained persons are affected.

7. Fees / Costs. Each Party bears its own attorney fees and costs, except [________________________________].

8. Tax Allocation. [________________________________].

9. Confidentiality. [Optional.]

10. Governing Law / Venue. Alabama law governs. Venue: [________] County Circuit Court / Probate Court.

11. Entire Agreement / Amendment / Counterparts. Entire agreement; amend only in writing signed by all; counterparts (including electronic) permitted.

12. Binding Effect. Binds Parties, heirs, successors, assigns.

IN WITNESS WHEREOF, the Parties execute this Agreement as of the date first above written.

_______________________________
[CONTESTANT NAME] — Plaintiff

_______________________________
[PROPONENT NAME] — Defendant

_______________________________
[EXECUTOR NAME] — Executor

[Additional signatures and notary acknowledgments.]

SOURCES AND REFERENCES

• Alabama Code Title 43, Chapter 8 (Probate Code) — https://alisondb.legislature.state.al.us/alison/CodeOfAlabama/1975/coatoc.htm
• Alabama Rules of Civil Procedure
• Wilson v. Wehunt, 631 So. 2d 991 (Ala. 1994)
• Allen v. Sconyers, 669 So. 2d 113 (Ala. 1995)
• Clifton v. Clifton, 529 So. 2d 980 (Ala. 1988)
• Simpson v. Jones, 460 So. 2d 1282 (Ala. 1984)
• Alabama Probate Judges Association forms

DISCLAIMER: The six-month deadline under § 43-8-199 is jurisdictional. Retain qualified Alabama counsel immediately.