After the death of a person who executed a Last Will and Testament or a Living Trust, disputes sometimes arise concerning the validity of these documents. Disputes most often occur when one family member is to receive more than others, especially if that person was more involved in influencing the decisions of the deceased during the period when the Will or Trust was created.

If a Will or Trust meets all of the required legal formalities, the only available basis to attack the validity of such documents is to assert that the decedent either lacked the necessary mental capacity or was subject to undue influence. A petition which makes such allegations must be filed with the probate court, asking that the Will or Trust be declared invalid.

The person who contests the Will or Trust has the burden of proof and must overcome the legal presumption that the documents are valid. However, there are many cases where challenges have been successful. Generally, the decedent’s medical history and the testimony of physicians or psychologists can present compelling evidence that the mental or physical condition of the deceased was such that he or she lacked the requisite cognitive ability.

Undue influence can involve intimidation, coercion or simply taking advantage of someone who has been dependent on another. In order to prove undue influence, testimony of those who witnessed a beneficiary exerting strong control over an elderly or infirm person, together with medical documentation of the person’s weakened or dependent condition is necessary. If a caretaker of an elderly or dependent person is a beneficiary of the person’s Will or Trust, there is a rebuttable presumption that there was undue influence.

Obtaining legal advice and representation from an experienced estate planning and probate attorney can help clients avoid stressful and costly challenges.

Rod Woodbury is the managing shareholder of Woodbury Law and can be reached at
(702) 933-0777 or rod@woodbury-law.com.