PROBATE IN SOLEMN FORM

August 30, 2010 § Leave a comment

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Petition filed to probate will in solemn form.

  • Notice to all interested persons.  § 91-7-19, MCA.
  • Process is issued under Rule 81, MRCP.
  • At the petition of either party, the issue of devisavit vel non — whether the will is the valid last will and testament of the decedent — may be tried.

Hearing.

  • Either party may request a jury trial.  § 91-7-19, MCA.
  • Burden of proof is by a preponderance of the evidence.
  • If the will has already been admitted to probate in common form, the prima facie burden of proof has been met, and the burden of proof shifts to the contestants to overcome thr proponent’s prima facie proof as to the will’s validity.  § 91-7-27, MCA.
  • Tactical advantage if the will has already been admitted to probate in common form.  § 91-7-29, MCA.

Adjudication.

  • Binding on those made parties to the proceeding. 

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