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Tuesday, April 21, 2015

Can a Will be Contested? Part 1 (Undue Influence)

There are several ways in which a Will can be challenged. The three main reasons for contesting the Will include:

  1. Proper execution of a Will

  2. Whether the decedent had testamentary capacity to execute a Will

  3. Whether the Will was the product of undue influence or duress.

Whether or not the Will was the product of undue influence or duress is not easy to prove. The answer is usually determined at trial, and it is very fact specific.

In general, the objectant to the Will must establish a motive, an opportunity and actual exercise of undue influence (specific instances in which undue influence was actually exercised). Some of the issues that the court will examine include:

  • Was there was a dependency upon and subjection to the control of the person supposed to have wielded the influence.

  • Was the person who was supposedly wielding the influence present at the time of the Will execution? Was that person involved in preparing the Will?

  • Was there a prior Will? Did the new Will change the disposition of assets in unexpected and unexplained ways?

  • Did the beneficiary have a confidential relationship with the decedent? A confidential relationship includes being a lawyer, an accountant, a financial advisor, or other person of trust, who assisted the decedent in managing his financial affairs.

 

The court is likely to review all evidence regarding the decedent, including mental capacity, physical capacity, relationships with the beneficiary and relationship with the remaining family before deciding whether or not a Will should be invalidated.

Estate litigation is expensive, time consuming and embarrassing. It is better to avoid it all together, if possible. Talking to an experienced attorney who will anticipate the issues that can arise in litigation and advise about the best methods of avoiding it may save your loved ones money and heartache.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


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