Will Contest / Caveat Petition Package (Hawaii)

Will Contest / Caveat Petition Package — Hawaii

Part 1 — Pre-Suit Investigation Checklist

Decedent / Estate Information

Standing — Interested Persons Under HRS § 560:1-201

☐ Heir at law (intestate distributee)
☐ Beneficiary or devisee under the contested will
☐ Beneficiary under a prior will
☐ Surviving spouse / reciprocal beneficiary / elective-share claimant
☐ Creditor of the estate (limited standing)
☐ Other interested person: [________________________________]

Statute of Limitations / Deadlines

☐ Decedent died less than 3 years ago — formal testacy timely under HRS § 560:3-108
☐ Informal probate has occurred — petition to set aside under HRS § 560:3-401(a) within the 3-year window
☐ Formal testacy order entered — vacation under HRS § 560:3-412 on enumerated grounds and within statutory timeframe
☐ Tolling considered for minors and incapacitated persons
☐ Creditor claim period: 4 months from first publication (HRS § 560:3-801)
☐ Date by which contest must be filed: [__/__/____]

Document and Evidence Inventory

☐ Contested will (original and copies; date: [__/__/____])
☐ All prior wills and codicils
☐ Self-proving affidavit under HRS § 560:2-504
☐ Drafting attorney's file
☐ Subscribing witnesses' identities and contact information
☐ Notary records
☐ Medical records (24 months pre-execution)
☐ Pharmacy records
☐ Financial records (bank, brokerage, deeds, beneficiary designations)
☐ Power of attorney instruments
☐ Care-facility records, visitor logs (e.g., Laniolu, Hale Pulama Mau, Arcadia, etc.)
☐ Communications (texts, emails, letters)
☐ Funeral / estate-planning consultation records

Grounds — Preliminary Assessment

☐ Lack of testamentary capacity — In re Estate of Herbert, 90 Haw. 443 (1999): testator must know (a) nature and extent of property; (b) natural objects of bounty; (c) disposition being made; and (d) how these elements relate to form an orderly plan
☐ Undue influence — Hawaii applies confidential relationship + opportunity + susceptibility + result framework; in Estate of Herbert, the Hawaii Supreme Court clarified evidence admissible to establish disposition to exert undue influence
☐ Fraud — false representation; intent; reliance; injury
☐ Improper execution under HRS § 560:2-502 — writing; signed by testator (or by another in testator's conscious presence at direction); witnessed by two persons or notarized
☐ Holographic will under HRS § 560:2-502(b) — signature and material portions in testator's handwriting
☐ Revocation — physical act or subsequent instrument under HRS § 560:2-507
☐ Mistake of fact or law
☐ Forgery
☐ Insane delusion

No-Contest (In Terrorem) Clause Analysis — HRS § 560:2-517

☐ Identify any no-contest clause
☐ § 560:2-517: penalty clause unenforceable if probable cause exists for instituting the proceeding
☐ Document probable cause before filing

Part 2 — Caveat / Objection and Demand for Formal Testacy

IN THE CIRCUIT COURT OF THE [____] CIRCUIT
STATE OF HAWAII
PROBATE DIVISION

CAVEAT, OBJECTION TO PROBATE OF WILL, AND DEMAND FOR FORMAL TESTACY PROCEEDINGS

TO THE COURT, THE REGISTRAR, AND ALL INTERESTED PERSONS:

PLEASE TAKE NOTICE that [CAVEATOR'S NAME], an interested person within the meaning of HRS § 560:1-201, files this Caveat and Objection pursuant to HRS §§ 560:3-401 and 560:3-404, and:

1. Objects to the informal probate of the purported Last Will and Testament of [DECEDENT'S NAME] dated [__/__/____] (the "Contested Will");
2. Demands that the proceedings be conducted as a Formal Testacy Proceeding under HRS § 560:3-401;
3. Requests that the Registrar take no further action on any application for informal probate of the Contested Will or any informal appointment of a personal representative during the pendency of this contest, pursuant to HRS § 560:3-401(c);
4. Reserves the right to seek the appointment of a Special Administrator under HRS § 560:3-614 and to restrain further distributions under HRS § 560:3-401(d).

The grounds for this Caveat are set forth in the Verified Petition filed contemporaneously herewith.

Dated: [__/__/____]

[________________________________]
[CAVEATOR'S NAME], Caveator
c/o [ATTORNEY NAME], Hawaii Bar No. [______]
[FIRM] / [ADDRESS] / [PHONE] / [EMAIL]

Part 3 — Verified Petition for Formal Testacy Proceedings

IN THE CIRCUIT COURT OF THE [____] CIRCUIT
STATE OF HAWAII
PROBATE DIVISION

VERIFIED PETITION TO SET ASIDE INFORMAL PROBATE, FOR FORMAL TESTACY PROCEEDINGS, AND TO DECLARE PURPORTED WILL INVALID

COMES NOW Petitioner [PETITIONER'S NAME] ("Petitioner"), by and through undersigned counsel, and pursuant to HRS §§ 560:3-401, 560:3-402, and 560:3-404, and the Hawaii Probate Rules, petitions as follows:

I. PARTIES AND JURISDICTION

1. Petitioner is an adult resident of [_______________] and is an "interested person" under HRS § 560:1-201 because Petitioner is [☐ heir at law / ☐ beneficiary under a prior will dated [__/__/____] / ☐ surviving spouse / ☐ reciprocal beneficiary / ☐ other: ____________].

2. Decedent [DECEDENT'S NAME] died on [__/__/____] while domiciled in [_______________], State of Hawaii. A certified death certificate is attached as Exhibit A.

3. Decedent was survived by the heirs and devisees listed in Exhibit B.

4. Jurisdiction and venue are proper under HRS § 560:3-201 because the decedent was domiciled in the [____] Circuit at the time of death.

5. [PROPONENT'S NAME] is the proponent of the Contested Will and either has been informally appointed as Personal Representative or has applied for appointment.

II. THE CONTESTED WILL AND PRIOR WILL

6. The Contested Will is a document dated [__/__/____] purporting to be the Last Will and Testament of the decedent (Exhibit C).

7. A prior will dated [__/__/____], under which Petitioner is a beneficiary, is attached as Exhibit D (the "Prior Will"). The Prior Will should be admitted to probate if the Contested Will is invalidated.

III. GROUNDS FOR CONTEST

A. Lack of Testamentary Capacity

8. At the time of execution, the decedent lacked the testamentary capacity required by Hawaii law in that the decedent did not (a) understand the nature and extent of property; (b) know the natural objects of bounty; (c) understand the disposition being made; or (d) understand how these elements related to form an orderly plan. See In re Estate of Herbert, 90 Haw. 443, 979 P.2d 39 (1999).

9. The decedent suffered from [☐ organic brain syndrome / ☐ dementia / ☐ Alzheimer's / ☐ delirium / ☐ stroke effects / ☐ severe medication effects / ☐ other: ____________]. Specific facts: [____________________________________________________________].

B. Undue Influence — In re Estate of Herbert Framework

10. The Contested Will is the product of undue influence exerted by [PROPONENT'S NAME] over the decedent. Under In re Estate of Herbert, 90 Haw. 443, 979 P.2d 39 (1999), a will is invalid on undue-influence grounds where the testator's free agency was overcome.

11. [PROPONENT'S NAME] stood in a confidential / fiduciary relationship with the decedent by virtue of [☐ agency under power of attorney / ☐ caregiver / ☐ financial manager / ☐ trusted adviser / ☐ family member with day-to-day control / ☐ other: ____________].

12. The proponent had opportunity, susceptibility of the decedent existed, the proponent was disposed to exert influence, and the result indicates that undue influence was exerted, including without limitation: [☐ proponent drafted or procured drafting of the will; ☐ proponent was present at execution; ☐ proponent managed the decedent's finances; ☐ unnatural disposition; ☐ isolation of decedent; ☐ secrecy; ☐ disposition substantially benefits proponent over natural objects of bounty]. Specific facts: [____________________________________________________________].

C. Fraud

13. The Contested Will was procured through fraud, in that [☐ fraud in execution / ☐ fraud in inducement]. Specific facts: [____________________________________________________________].

D. Improper Execution — HRS § 560:2-502

14. The Contested Will fails to comply with HRS § 560:2-502 because [☐ not in writing; ☐ not signed by testator or by another in testator's conscious presence at direction; ☐ not witnessed by at least two competent witnesses signing within reasonable time after witnessing the signing or acknowledgment; ☐ if claimed as holographic — material portions not in testator's handwriting; ☐ if claimed as notarized will — not acknowledged before notary in compliance with statute; ☐ self-proving affidavit defective].

E. Revocation

15. The Contested Will was revoked by [☐ subsequent will / ☐ physical act under HRS § 560:2-507 / ☐ other]. Specific facts: [____________________________________________________________].

IV. REQUESTED RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

A. Take this matter as a Formal Testacy Proceeding under HRS § 560:3-401 and set the matter for hearing under HRS § 560:3-403;
B. Order notice to all interested persons as required by HRS § 560:1-401;
C. Declare the Contested Will invalid and deny it admission to probate;
D. Admit the Prior Will to probate; or, alternatively, declare the decedent intestate;
E. Set aside any informal probate of the Contested Will and remove [PROPONENT'S NAME] as Personal Representative;
F. Appoint a Special Administrator under HRS § 560:3-614 to preserve estate assets during the pendency of this contest;
G. Restrain the current Personal Representative from making further distributions, pursuant to HRS § 560:3-401(d);
H. Award Petitioner's costs and reasonable attorney's fees as allowed by HRS § 560:3-720;
I. Grant such other relief as is just and proper.

Dated: [__/__/____]

Respectfully submitted,

[________________________________]
[ATTORNEY NAME], Hawaii Bar No. [______]
[FIRM] / [ADDRESS] / [PHONE] / [EMAIL]
Attorney for Petitioner

Part 4 — Verification

STATE OF HAWAII
COUNTY OF [________________________________]

I, [PETITIONER'S NAME], being first duly sworn upon oath, depose and state: I am the Petitioner in the foregoing Verified Petition; I have read the Petition; and the factual allegations are true and correct of my own personal knowledge, except as to matters stated upon information and belief, and as to those matters, I believe them to be true.

[________________________________]
[PETITIONER'S NAME]

Subscribed and sworn to before me this [__] day of [____________], 20[__].

[________________________________]
Notary Public, State of Hawaii
Commission expires: [__/__/____]

(Notary certification per HRS § 456 and Hawaii Notary Public Manual — include jurat with name printed, commission number, expiration, judicial circuit, and number of pages.)

Part 5 — Notice of Hearing to Interested Persons (HRS § 560:3-403)

NOTICE OF HEARING ON VERIFIED PETITION FOR FORMAL TESTACY PROCEEDINGS

TO: All heirs, devisees, beneficiaries, creditors, and other interested persons of the Estate of [DECEDENT'S NAME]:

PLEASE TAKE NOTICE that on [__/__/____] at [__:__ a.m./p.m.], in Courtroom [____] of the Circuit Court of the [____] Circuit, Probate Division, located at [ADDRESS], a hearing will be held on the Verified Petition to Set Aside Informal Probate and for Formal Testacy Proceedings.

The Petition alleges that the purported Last Will and Testament of the decedent dated [__/__/____] is invalid by reason of lack of testamentary capacity, undue influence, fraud, improper execution, and/or revocation.

You may appear at the hearing and be heard, file written objections under HRS § 560:3-404 not later than the hearing date, or take such action as you deem appropriate. Failure to appear or object may result in entry of orders binding upon you.

A copy of the Petition is available from the Clerk of Court or from undersigned counsel upon request.

Dated: [__/__/____]

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

Certificate of Service: I certify that on [__/__/____] I served this Notice by [☐ first-class mail / ☐ certified mail / ☐ personal service] upon each interested person listed in Exhibit B, in compliance with HRS § 560:1-401 and the Hawaii Probate Rules, not less than the required time prior to the hearing.

[________________________________]
[ATTORNEY NAME]

Part 6 — Discovery Plan

A. Initial Steps

☐ Hawaii Rules of Civil Procedure (HRCP) Rule 26 conference (where applicable in contested probate)
☐ Hawaii Probate Rules — pretrial procedure (HPR 19 et seq.)
☐ Initial disclosures
☐ Preservation letters (drafting attorney; physicians; banks; care facilities)

B. Written Discovery (HRCP 26–37, as applicable in probate)

☐ Interrogatories — HRCP 33
☐ Requests for Production — HRCP 34
☐ Requests for Admission — HRCP 36
☐ Subpoenas duces tecum — HRCP 45 (drafting attorney; physicians; First Hawaiian Bank / Bank of Hawaii / American Savings; brokerages; care facilities)

C. Depositions

D. Experts

☐ Retrospective capacity expert (geriatric psychiatry / neuropsychology)
☐ Forensic document examiner (signature / forgery)
☐ Forensic accountant
☐ Expert disclosures per HRCP 26(b)(4)

E. Privilege

☐ Testamentary exception to attorney-client privilege (HRE Rule 503(d)(2))
☐ Hawaii Rules of Evidence — applicable hearsay exceptions for deceased declarants

Part 7 — Trial-Ready Elements and Burdens of Proof

A. Burdens Under HRS § 560:3-407

Standards: Lack of capacity — preponderance. Undue influence — preponderance. Fraud — clear and convincing.

B. Lack of Testamentary Capacity

☐ Decedent did not understand nature and extent of property
☐ Decedent did not know natural objects of bounty
☐ Decedent did not understand disposition being made
☐ Decedent did not understand how these elements related as part of an orderly plan
☐ Capacity tested at moment of execution; lucid intervals may rebut

C. Undue Influence — In re Estate of Herbert Framework

☐ Confidential relationship between decedent and proponent
☐ Opportunity to exert undue influence
☐ Susceptibility / vulnerability of the decedent
☐ Disposition by proponent to exert influence
☐ Result indicating undue influence was exerted (unnatural disposition; departure from prior plans; isolation of testator)
☐ Character / disposition evidence admissible within bounds set by Herbert

D. Fraud

☐ False representation of material fact
☐ Knowledge of falsity / reckless disregard
☐ Intent to deceive
☐ Reasonable reliance
☐ Disposition materially affected
☐ Clear and convincing evidence

E. Improper Execution — HRS § 560:2-502

☐ Not in writing
☐ Not signed by testator (or by another in testator's conscious presence at testator's direction)
☐ Not witnessed by two competent persons
☐ Witnesses did not sign within reasonable time after witnessing signing or acknowledgment
☐ Notarized-will alternative requirements not satisfied
☐ Holographic: signature or material portions not in testator's handwriting

F. Trial Exhibits

☐ Contested Will (original)
☐ Prior Will(s)
☐ Death certificate
☐ Medical records (indexed; timeline)
☐ Drafting attorney's file
☐ Financial transaction summary
☐ Care-facility records / visitor logs
☐ Expert reports and CVs
☐ Relationship and timeline demonstratives

G. Jury Trial / Bench Trial Considerations

☐ Right to jury under HPR / HRS (advisory jury available in probate at court's discretion; verify under current rules and case law)
☐ Bench trial typical in Probate Division
☐ Hawaii Pattern Jury Instructions — Civil (HAW. J.I.) — adapt capacity and undue influence instructions

Part 8 — Settlement Agreement

CONFIDENTIAL FAMILY SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement ("Agreement") is entered into as of [__/__/____] by and among:

Recitals

A. [DECEDENT] died on [__/__/____], a resident of [_______________], State of Hawaii.

B. A purported Last Will and Testament dated [__/__/____] was offered for probate in Case No. [__________] in the Circuit Court of the [____] Circuit, Probate Division.

C. Contestant filed a Verified Petition challenging the Contested Will.

D. The Parties wish to compromise all disputes pursuant to HRS § 560:3-912.

Terms

1. Modified Distribution. Notwithstanding the terms of the Contested Will, the estate shall be distributed as follows: [____________________________________________________________].

2. Dismissal with Prejudice. Within ten (10) business days of court approval, Contestant shall dismiss the Petition with prejudice.

3. Will Admitted for Administrative Purposes. The Parties stipulate the Contested Will may be admitted to probate solely for administration, subject to the distribution above.

4. Personal Representative; Bond. [NAME] shall serve as Personal Representative. Bond: ☐ waived / ☐ $[__________].

5. Mutual Releases. Each Party releases the others from all claims arising out of or related to the decedent's estate, the Contested Will, lifetime transfers, gifts, and fiduciary conduct, except for the obligations under this Agreement.

6. Attorney's Fees and Costs. Each Party bears its own fees and costs, except: [______________________________________].

7. Confidentiality. Terms are confidential except as required by law or for court approval.

8. Tax Treatment. Each Party responsible for own tax consequences.

9. Court Approval. Subject to approval by the Court under HRS § 560:3-912.

10. Entire Agreement; Governing Law. Entire agreement; governed by Hawaii law.

11. Counterparts; Electronic Signatures. May be executed in counterparts and electronically (HRS Chapter 489E — Uniform Electronic Transactions Act).

Acknowledgment of Counsel. Each signatory acknowledges having had the opportunity to consult independent legal counsel before signing.

Sources and References

• HRS § 560:3-401 (Formal testacy proceedings) — https://codes.findlaw.com/hi/division-3-property-family/hi-rev-st-sect-560-3-401/
• HRS § 560:3-407 (Burdens in contested cases)
• HRS § 560:3-108 (Ultimate time limit — 3 years)
• HRS § 560:3-412 (Effect of order; vacation)
• HRS § 560:2-502 (Execution requirements)
• HRS § 560:2-517 (No-contest clause; probable-cause exception)
• In re Estate of Herbert, 90 Haw. 443, 979 P.2d 39 (1999)
• Hawaii Probate Rules (HPR) — https://www.courts.state.hi.us
• Hawaii Rules of Civil Procedure (HRCP)
• Hawaii Rules of Evidence (HRE)