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Contesting a Will or a Trust. Can it Be Done?

By Phil Craig

First, we must ask, what is contesting a will or a trust? Basically, contesting a will or a trust means that you are challenging the validity of the will or trust document.

It is similar to the flag that is thrown in a pro football game after a call by the referee.

In this case, the will or trust is assumed valid by the probate court judge. You are throwing out the flag and contesting the validity of the document in question.

Contesting a will or trust usually rests on one or two of the following factors: undue influence in executing the will or trust, or that the person executing the will or trust lacked mental capacity to execute the will or trust at the time it was executed.

What is undue influence in executing a will or trust?

Here is the definition of undue influence:

Undue Influence - Influence of another that destroys the freedom of a testator or donor and creates a ground for nullifying a will or invalidating a future gift. The exercise of undue influence is suggested by excessive insistence, superiority of will or mind, the relationship of the parties or pressure on the donor or testator by any other means to do what he is unable, practically, to refuse.

So, if you can prove that the person who executed the will or trust was acting with undue influence, that is, was acting under pressure that was unable to refuse, you may have a basis to claim undue influence. This would give you one reason to contest a will or trust.

The other method to contest a will or trust is that there was a lack of testamentary capacity.

Testamentary capacity is the legal ability to make a will. In California, for example, Probate Code Section 812 says, in part, that a person lacks the capacity to make a decision unless the person has the ability to commnicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:

(a) The rights, duties, and responsibilities created by, or affected by the decision.

(b) The probable consequences for the decision maker and, where appropriate, the persons affected by the decision.

(c) The significant risks, benefits, and reasonable alternatives involved in the decision.

So, here, to contest a will or trust due to lack or testamentary capacity, you would have to show all three elements.

This is a tough case but is not impossible. In my early legal career, I was able to obtain a $1,000,000 plus settlement for a client using the above elements.

About the Author

Phil Craig is a licensed attorney and entrepreneur. He started practicing law at age 25 in 1979. He does not take on any more clients, but is advisor to some of the biggest names in the internet world. He shares his knowledge gained over the last 25 years at his Living Trust Secrets newsletter site: click here: http://www.LivingTrustSecrets.com

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