How To Challenge A Will Or Trust In Court

Suppose you are grieving the loss of someone you loved very much—it could be a parent or sibling or child. And then you find out that someone tricked or coerced your now-deceased loved-one into changing their will or trust shortly before they died. Not only have you lost someone that was very dear to you, but you realize that that person was taken advantage of by someone your loved-one (and you) trusted. Now imagine that, as a result, your loved-one’s possessions will be given to the very person who violated their trust. What can you do?

Fortunately, the law provides some ways in which you can make sure your loved-one’s true wishes are honored. If you think that a will does not reflect what your loved-one truly intended, there are at least two ways you can challenge the will in court.

First, you can show that your loved-one lacked what is called “testamentary capacity” when the will was made. And second, you can show that the will was the result of “undue influence.” Let’s look at these legal doctrines one at a time.

You Can Challenge Their Testamentary Capacity

To have testamentary capacity, you must be able to do three things: (1) be aware of who your closest friends or relatives are; (2) know, within reasonable limits, what property you own; and (3) understand the significance of making a will. In other words, you have to understand that by making a will you are deciding who will get your property, you have to understand what property you are giving away, and you have to understand who will and will not be getting your property.

So, for example, if someone with Alzheimer’s can only remember two of their four children, and then they make a will giving everything only to the two children they remember, it is likely that the person lacked testamentary capacity. Or, as another example, if a mental illness prevents someone from understanding what a will is or from realizing that they are signing a legal document, it is likely that the person lacked testamentary capacity.

But just because someone has lost a step or two mentally in their old age does not mean they lack testamentary capacity. Rather, they only lack testamentary capacity if, at the time the will was signed, they are incapable of doing one or more of the three things discussed above. So, if the person goes in and out of lucidity during the last few months of their life but manages to make a will during a clearer moment, then the will would be valid. Similarly, the will could still be valid even if a court has placed the person in a conservatorship (based on a determination that they aren’t competent to manage their financial or health decisions) so long as the person can do the three things above.

So how do your prove that someone lacked testamentary capacity at the time a will was created?

To prove that someone lacked testamentary capacity at the time they created a will, you have to provide evidence that they were incapable of knowing one of the three things discussed above (who their closest relatives were, what they owned, and what they were doing by signing a will). This can be proven through testimony of people who witnessed the person sign the will (including testimony of the attorney who prepared the will), video evidence of the will signing, testimony of family members and friends about the person’s mental state generally, and testimony or documents from doctors.

But even with this kind of evidence, in many cases a lack of testamentary capacity can be hard to prove. For this reason, the success of a challenge to someone’s testamentary capacity often also requires what is referred to as “circumstantial evidence.” Simply put, circumstantial evidence is evidence about the circumstances in which something happened.

Here’s an example of how circumstantial evidence can help prove a lack of testamentary capacity. Imagine that Carol is attempting to prove that her father, Dan, lacked testamentary capacity when he amended his will to disinherit Carol. Carol could testify that Dan had trouble remembering his children toward the end of his life. But if someone else, say the attorney who prepared the new will, testifies that at the time Dan signed the will he appeared to be of sound mind, Carol could still prove her point through circumstantial evidence. She could provide evidence that Dan revised his will periodically throughout his life but each version of the will consistently stated that Dan’s possessions would be given equally to his four children (including to Carol) and that Dan and Carol maintained a good relationship up until Dan’s death. Under the circumstances shown with this evidence, there would be no reason for why Dan would have disinherited his daughter Carol except for his trouble remembering all his children. As that example shows, the strongest cases will include direct evidence (such as witness testimony that the person lacked testamentary capacity) and circumstantial evidence.

Another way to show that someone lacked testamentary capacity would be by providing evidence that they suffered from what is called an “insane delusion” when they made the will. An insane delusion is a belief that flies in the face of reason and affects the substantive terms of a will. For example, if a person disinherits a child because the person believes the child has been stealing her money, even though the person has been shown clear proof that nothing has been stolen and the accused child could not possibly have stolen it, this could be considered an insane delusion. If a court finds that a will, or part of a will, was the result of an insane delusion, the court can invalidate it.

So, to prove that someone lacked testamentary capacity to create a will, you must show that they lacked the capacity to either (1) understand that by making a will they are deciding who will get their property, (2) understand what property they are giving away, and (3) understand who will and will not be getting their property. This can be proven through direct evidence of the person’s state of mind when they made the will or through circumstantial evidence.

You Can Allege They Were Under Undue Influence

You can also challenge a will under the legal principle of “undue influence.” Under this principle, you have to prove that a will, or a provision of a will, reflects the wishes of someone other than the person who created it. In other words, you have to show that someone unduly (or improperly) influenced the person making the will to do something they ordinarily would not have done. This can be tricky, especially when the person who influenced your deceased loved-one is fighting you in court.

To win on an “undue influence” argument in court, you would have the burden of providing more persuasive evidence than the person you are fighting against. If the court finds that the evidence presented by both sides is equally persuasive, then the tie goes against the person challenging the will (you).

But, an undue-influence case gets a lot easier if you can prove 3 things: (1) that the person who allegedly exerted undue influence was in a position of trust at the time; (2) that that person was involved in the making of the challenged will; and (3) that the person disproportionately benefits from the challenged will. If you can prove these three things, your case will be a lot easier because the burden of proving the case shifts to the other person. In other words, if you can prove those three things, then the person who allegedly exerted undue influence has to prove that they did not improperly influence the making of a will.

Here’s an extreme example, based on a recent Utah case, of what undue influence might look like. An elderly widow had two children: a son and a daughter. The son lived with his widowed mother and took care of her for fifteen years. Although the mother had made changes to her Will over the years, she had consistently divided her Estate equally between her two children. Then, about a year before the mother died, she fell and hit her head. Although the son continued to care for the mother, when the son left for a week-long vacation, the daughter checked the mother into a hotel and refused to tell the son (her brother) where she was keeping the mother. During this time, the daughter arranged for a family friend, who happened to be an attorney, to revise the Will to disinherit the son. The mother died shortly after.

Based on these facts, the son was able to invalidate the revised Will. This is because (1) the daughter (the person who allegedly exerted undue influence on the mother) was in a position of trust (as her mother’s caretaker) at the time the will was changed; (2) the mother was involved in the revision of the Will (by arranging to have an attorney revise the Will); and (3) the mother disproportionately benefited from the revised Will (her brother’s share was given to her family). Because the evidence established these three facts, the burden shifted to the daughter to prove it was the mother’s desire to disinherit the son—something she was unable to do. As a result, the revised Will was set aside and the brother and daughter inherited equal shares of the mother’s estate.

Conclusion

In summary, if you believe a Will does not accurately reflect a deceased loved-one’s wishes (either because the loved-one was tricked or because the loved-one lacked mental capacity) the law may provide you with an avenue to set things right. So if you find yourself in this situation (or something similar), reach out to an attorney to see if you have a good case.