There are many reasons why a will or a trust may be challenged and set aside as invalid. Here are some of the more common grounds to contest someone’s will or trust.
1. Coercion – If someone coerces the testator (the person creating the will or trust) to make changes in a will or a trust or forces them either physically or emotionally to do something that is not what they truly wish to do, the document can be challenged on the basis of coercion.
2. Duress – If someone exerts pressure upon he testator to change their will or trust or make dispositions they don’t want to do, the document could be held invalid on the basis of duress.
3. Undue Influence – This is very similar to duress. Undue influence could be threats, manipulation, isolation, selling falsehoods. Pressuring someone to make changes to their will or trust could be both duress and undue influence and even coercion.
4. Fraud – This ground may occur where someone alters the will or the trust, replaces pages, destroys an amendment, or forges a signature.
5. Improper Execution – Wills have to be signed in front of witnesses who attest that the testator is of sound mind and is who he or she purports to be. Trusts have to be notarized by a notary public who requires identification to verify that the testator is indeed the individual signng his or her trust. Improper execution can invalidate a will or a trust. This ground sometimes appears where a testator has prepared a do-it-yourself document.
6. Lack of Capacity – Testators should be of sound mind and not suffering from a disease or condition that renders them incapable of understanding what they are doing. People who have Alzheimer’s disease, dementia, or a brain injury may not be capable of executing a will or a trust. Another example is where the person temporarily lacks capacity such as if the testator is drunk or under the influence of drugs.
7. Incompetence – A testator may be incompetent to create or execute a testamentary document. This ground overlaps with lack of capacity.
If you are concerned about the validity of a will or trust, give us a call. We have experience in estate planning as wells as probate and trust litigation. Your first consultation is complimentary