| First, we must ask, what is contesting a will | | | | have a basis to claim undue influence. This |
| or a trust? Basically, contesting a will or a | | | | would give you one reason to contest a will |
| trust means that you are challenging the | | | | or trust. |
| validity of the will or trust document. | | | | |
| | | | The other method to contest a will or trust |
| It is similar to the flag that is thrown in a | | | | is that there was a lack of testamentary |
| pro football game after a call by the | | | | capacity. |
| referee. | | | | |
| | | | Testamentary capacity is the legal ability to |
| In this case, the will or trust is assumed | | | | make a will. In California, for example, |
| valid by the probate court judge. You are | | | | Probate Code Section 812 says, in part, that |
| throwing out the flag and contesting the | | | | a person lacks the capacity to make a |
| validity of the document in question. | | | | decision unless the person has the ability to |
| | | | commnicate verbally, or by any other means, |
| Contesting a will or trust usually rests on | | | | the decision, and to understand and |
| one or two of the following factors: undue | | | | appreciate, to the extent relevant, all of |
| influence in executing the will or trust, | | | | the following: |
| or that the person executing the will or | | | | |
| trust lacked mental capacity to execute the | | | | (a) The rights, duties, and responsibilities |
| will or trust at the time it was executed. | | | | created by, or affected by the decision. |
| | | | |
| What is undue influence in executing a will | | | | (b) The probable consequences for the |
| or trust? | | | | decision maker and, where appropriate, the |
| | | | persons affected by the decision. |
| Here is the definition of undue influence: | | | | |
| | | | (c) The significant risks, benefits, and |
| Undue Influence - Influence of another that | | | | reasonable alternatives involved in the |
| destroys the freedom of a testator or donor | | | | decision. |
| and creates a ground for nullifying a will or | | | | |
| invalidating a future gift. The exercise of | | | | So, here, to contest a will or trust due to |
| undue influence is suggested by excessive | | | | lack or testamentary capacity, you would have |
| insistence, superiority of will or mind, the | | | | to show all three elements. |
| relationship of the parties or pressure on | | | | |
| the donor or testator by any other means to | | | | This is a tough case but is not impossible. |
| do what he is unable, practically, to refuse. | | | | In my early legal career, I was able to |
| | | | obtain a $1,000,000 plus settlement for a |
| So, if you can prove that the person who | | | | client using the above elements. |
| executed the will or trust was acting with | | | | |
| undue influence, that is, was acting under | | | | You can find more information about wills or |
| pressure that was unable to refuse, you may | | | | trusts: Click Here. |