How to Avoid a Disastrous Will or Trust Contest – Part 2

business_meetingA will or trust contest can derail your final wishes, rapidly deplete your estate, and tear your loved ones apart.

What Are the Legal Grounds for Contesting a Will or Trust?

In general there are four grounds to challenge the validity of your will or trust:









1.) The will or trust was not signed as required by state law.  Each state has specific laws that dictate how a will or trust must be signed in order for it to be legally valid (usually wills not entirely in your handwriting must be signed in the presence of two witnesses who meet certain requirements).


2.) The person making the will or trust lacked the necessary capacity.  The capacity to make a will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a will or trust.  Each state has laws that set the threshold that must be overcome to prove that a person lacked sufficient mental capacity to sign a will or trust.  Some states apply the same standard to establishing a trust and others apply the standards for capacity to make a contract (understand the purpose and effect of the contract).


3.) The person making the will or trust was unduly influenced into signing it.  As people age and become weaker both physically and mentally, others may exert influence over decisions, including how to plan their estate.  Undue influence can also be exerted on the young and the not so young.  In the context of a will or trust contest, undue influence means more than just nagging or verbal threats.  It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.


4.) The will or trust was procured by fraud.  A will or trust that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud.


Planning Tip:  While it is easy to assume that a will or trust that was signed in an attorney’s office is valid, this is not always the case.  Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a will or trust legally valid in their state.  Therefore, it is important for you to work with an attorney who is familiar with the estate planning laws of your state. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.