Contesting Wills Can Get Testy

By:  Robert M. Schartz

Estimates are that somewhere between $41 Trillion and $136 Trillion in wealth will be transferred in the United States before the year 2052.  The vast majority of this wealth will be transferred through using Wills and Trusts.  Many people believe that if a person has a Will it is the last word on how their property and possessions will be transferred.  Unfortunately, an heir or beneficiary may contest the validity of the Will.  The two most common attacks are whether the person making the Will (the "Testator") had the mental capacity to make a Will and whether the Testator was unduly influenced when the Will was made.

Mental Capacity. A person has the mental capacity to make a Will if:  (1) they know a Will is being made; (2) they know the kind and extent of their property; (3) they are able to identify and remember the persons they would naturally give their property to; and (4) they know how they want to distribute their property.  A Will is valid if the Testator meets these criteria even if their mental or physical powers are impaired.  If the Testator or someone in his or her family believes there may be a will contest because of diminished mental capacity, the attorney should be made aware, so that special precautions can be taken when the Will is made.

Undue Influence. In order to establish undue influence, it must be proved:  (1) that when the Will was executed, the Testator was susceptible to undue influence; (2) the person receiving the improper share had the opportunity to exercise influence and carry out this influence for a wrongful purpose; (3) that the person receiving the improper share was inclined to influence the Testator unduly for that purpose; and (4) the resulting bequest was clearly brought about by this undue influence.

Courts presume that the Testator was free of undue influence, but this is probably the most frequent area on which a Will is attacked.  Undue influence comes about when a person substitutes their intentions for those of the Testator.  In that case, the Will sets forth the wishes of the influencer instead of the true intentions of the Testator.  The undue influence must be present at the very time that the Will is being signed.  That doesn't mean that the influencer is present when the Will is signed, but rather that the Testator is actively under that influence and distributes his or her property based on the intentions of the influencer.

Unfortunately, Will contests sometimes take on the acrimony of a divorce.  Hurt feelings or a perceived slight from decades ago may become a central part of a Will contest.  It becomes crucially important to retain an attorney with the necessary experience to steer the matter towards a timely and fair resolution before the assets of the Testator are unfairly distributed or are depleted through a lengthy court battle.


If you have questions regarding will contests, please contact one of our estate planning attorneys at (402) 392-1250.