Contesting a Will Is No Easy Feat

When it comes to executing a will, many people worry unnecessarily that their wills might be contested.

In fact, wills are seldom contested and even when they are, challenges rarely succeed. One of the most difficult claims is that the decedent had been unduly influenced, or pressured, by someone with a vested interest in the contents of the will.

Simply put, undue influence is concerned with how dependent the decedent was on another person at the time of the execution of the will. Did the person take advantage of that dependency?

To test for undue influence, courts generally look for:

  • Evidence of control sufficient to have forced the decedent to do something extraordinary.
  • Evidence of fraud.
  • Threats of misrepresentations.
  • Physical or moral coercion.

The burden of proof is ordinarily on the person challenging the will, as courts assume that properly executed wills are valid. However, if one beneficiary benefits greatly from the will and presses the court to approve it, the burden of proof may switch, forcing the person to prove that undue influence did not exist.

Most states require a high burden of proof in these cases and, because undue influence is almost always done in private, it can be difficult to show acts that can produce a successful challenge. Moreover, it is generally accepted that family, colleagues and neighbors regularly influence people, and that such influence is not necessarily inordinate.

Challengers do, however, have one advantage — they can generally supply circumstantial evidence to support their cases. Some factors courts may consider are:

  • Fraud.
  • A hasty execution of the will.
  • Concealment of a new will.
  • Active involvement of a beneficiary in securing a new will, such as making appointments, preparing the forms, and answering questions.
  • Inconsistency between the new will and previous estate plans.
  • Provisions in the will that don’t match family relationships and attitudes of the decedent.
  • The decedent’s susceptibility to undue influence.
  • The weakened condition of the decedent.
  • A “confidential relationship” such as a power of attorney, close family connection or fiduciary relationship.
  • The fact the decedent was dependent on and placed trust in a beneficiary.
  • A beneficiary who benefits substantially from the will.

One, or even several, of these elements won’t automatically invalidate a will, but the cumulative effect may provide enough evidence for a challenge.

To help ensure an ironclad will: Find legal help in executing your estate plan, particularly if you are concerned about a challenge to your will. Once your estate planning attorney properly prepares a will, don’t worry unnecessarily about someone successfully contesting it.

Contributing Advisors