Grounds to Contest a Will

In a previous post, I discussed the proper mental capacity required to form a valid will. If the testator lacks the necessary mental capacity, there are grounds to contest the validity the will. In this post, I will discuss some other valid grounds to contest a will, specifically the existence of undue influence, fraud, and duress.

Undue Influence as Grounds to Contest a Will

If a bequest in the will was made under the influence of undue influence, the bequest will be struck as invalid. (While bequest technically refers to the transfer of personal property and devise to the transfer of real property, bequest is often used as a general term to describe the transfer of any property pursuant to the terms of a will.)

While the presence of undue influence may result in a court’s holding the entire will invalid, this does necessarily have to be the case. A court may simply strike a specific bequest if the circumstances do not justify a complete striking of the will.

Elements of Undue Influence

There are three elements of undue influence:

1. The influence was undue (obviously);
2. The influence affected the testator’s mind;
3. The testator executed his or her will differently on account of the influence.

Proving Undue Influence

Signs of undue evidence include:

1. The existence of a confidential relationship between the testator and the will beneficiary;
2. The existence of an untraditional disposition in the will—such as a married father of four giving a large gift to a business colleague or a personal lawyer;
3. The beneficiary had access to the testator and the opportunity to exercise undue influence over him or her;
4. The testator was susceptible to undue influence;
5. The existence of a clear motive for the beneficiary to unduly influence the testator, such as a financial gain the beneficiary would have otherwise been unlikely to receive.
6. The beneficiary had some type of connection to the process of drafting the will, such as the lawyer drafting the will for the testator.

These are merely among the potential signs of undue influence. While they form suspicious circumstances, they are not definitive. There is still a presumption that a will is valid, so only after evidence of suspicious circumstances have been submitted to the court does the burden of proof shift to those who would have the will upheld as valid.

There are two situations in which the nature of the relationship between the testator and the beneficiary almost always give rise to suspicions of undue influence. The first is where the testator and the beneficiary had a sexual relationship and there was a great age disparity between the two.

The second is where a bequest is made to the testator’s attorney, except where the attorney is related to the testator. So, if an attorney drafts a will for his mother in which he inherits, that is generally ok. Where an individual leaves money to his or her unrelated attorney, however, undue influence is assumed.

Fraud as Grounds to Contest a Will

The existence of fraud can serve as grounds to contest a will.  For such fraud to exist, there must be:

1. A false representation;
2. A knowledge of the falsity on the part of the perpetrator;
3. A reasonable belief in the fraudulent representation on the part of the testator;
4. An intent on the part of the perpetrator to perpetrate a fraud;
5. An actual affect on the provisions of the will.

There are two types of fraud applicable to the creation of wills: fraud in the inducement and fraud in the execution.

Fraud in the Inducement

Fraud in the inducement occurs where the perpetrator tells a lie that affects the way the testator draws up his or her will. So, for example, if the perpetrator of the fraud were to say to the testator, “If you put me in your will, I will help your kid get into college,” without any intention to actually keep that promise, that would be fraud in the inducement.

This type of fraud is known a fraud in the inducement because the untruth induces another to take an action he or she would otherwise not have taken. In this case, that action is naming someone as a will beneficiary. Consequently, such actions can serve as grounds to contest a will.

Fraud in the Execution

Fraud in the execution is a misrepresentation about what the testator is actually executing. It is a method of tricking the testator into believing he or she is doing one thing, when he or she is actually doing something else.

For example, if the testator prepares a will and requests his or her attorney to bring the will into the room so that he can sign it, but the attorney brings in a different will with the intent of tricking the testator into signing a will with differing provisions, this is fraud in the execution. This type of fraud is much less common than fraud in the inducement.

Duress as Grounds to Contest a Will

A will drafted and signed under duress is invalid and often easy to spot. A clear example of duress exists where the perpetrator threatens the testator with bodily harm to induce him or her into signing a will. Making the testator an “offer that he couldn’t refuse” is a clear example of duress and provides grounds for contesting the will.

Tortious Interference with an Expectancy

Claiming tortious interference with an expectancy is an alternative to contesting a will. It is a lawsuit against the actual interferer, not a lawsuit to challenge the will’s validity. Such a suit can be filed even if the interferer did not inherit anything under the will in question. Demonstrating a tortious interference with an expectancy can be difficult to do, so this is often not the preferred route for those who believe they were wrongfully excluded from an inheritance.