JULY 11, 2017
Can a Will be Challenged?  

When a family member, close friend, or other interested person in a will has doubts about whether a last will and testament is legitimate, s/he may challenge the will in court. A will challenge is a legal proceeding which can be complex. When a family member feels slighted for being left out of the deceased's estate, it may be tempting to challenge the will but unless there is some legal basis for the will challenge, it may be a large waste of time, money, and emotional energy to challenge the will.

Legal Grounds for Challenging a Will

There are some valid legal grounds for challenging a will. One ground may be duress; Duress would be a situation where a testator was coerced into creating or changing a will under a threat toward the testator or a loved one of the testator. A more common ground for a will challenge is the more subtle ground called "undue influence". Undue influence is a legal term used to define a situation where someone uses their position of power or confidential relationship with a testator to convince the testator to create or change a will in a way that s/he would not do so under normal circumstances.

Undue influence
can be more likely as a person gets older because people may be more vulnerable to manipulation. For example, if the testator is being cared for by one of her five children, and the testator is heavily medicated, the one adult child caring for the testator may be able to convince the testator to change her will to leave the entire estate to him and to leave nothing to the other four children. A heavily medicated individual may not even be aware that her other children exist if she doesn't see them every day.

In this example, if the testator would not normally leave the entire estate to only one child, the other children may have legal grounds to challenge the will. The grounds of undue influence may be proven if the testator was not of sound mind or did not have the mental capacity to make a change to her will. A will must be created when a person has the mental capacity to appreciate and understand the decisions in the will.
Mental Capacity

Claiming a testator did not have the mental capacity to create or change a will is likely the most common ground for a will challenge. Proving mental incapacity may be as easy as providing medical records at the time of the will but it can be very complicated if the medical records do not indicate mental incapacity. This complication is compounded by the fact that one must prove that the testator lacked mental capacity at the time of signing the document, which is likely not the time the testator might have been evaluated by a doctor. A testator might think she is Cleopatra in one moment, be completely clear 5 minutes later, sign a will knowingly and willingly, and then believe she is Marilyn Monroe 5 minutes later. So long as she knew what she was doing when she signed the will, she had capacity.

Close Relationships Provide Advice and Possibly Manipulation

Another common situation occurs when one person has a confidential relationship with another and uses the relationship to influence control over the testator's decisions. A testator can be influenced by a person's constant presence when the testator's health is failing. Of course there may also be legitimate reasons for a testator to change a will late in life. A testator may be genuinely grateful for a caregiver's loyalty and companionship and may in fact intend to leave the entire estate to the one child as a reward for that loyalty. The court must carefully consider the circumstances and the evidence. The goal of every court proceeding regarding a will is to respect the true intentions of the testator.

Will Contests are Typically Emotionally-Charged Proceedings

Before anyone makes a challenge to a will, s/he should give careful consideration to the emotional toll a will challenge can have on a family. Accusing a family member of using undue influence can turn ugly. It can also turn family members against each other. It can be difficult for family members who are left out of a will, or who don't get as much as they thought they might, but filing a will challenge may make matters worse. Once a will is challenged, the distribution of the estate assets must be put on hold until the court can determine whether the will is valid.
An experienced probate attorney can help you understand your rights and help weigh the possibilities of a will challenge and whether it is the right course of action in your particular case. An experienced estate planning attorney can help you create an estate plan which is less likely to be challenged so you can rest assured your family will be spared the pain and expense of a will challenge.


With living trusts, you can get a Certificate of Independent Review, which can be a de facto insurance plan against challenges to a living trust. Often this is done in the scenario where a care taker, who is presumed in California to have exerted undue influence, is a trust beneficiary. By going to an independent attorney after a trust is done and reviewing the trust document with the independent attorney, you can obtain a certificate by which the attorney certifies that you understand your choices and you make your choices knowingly of your own free will. This makes it much more difficult for a relative to claim that your choices were the product of undue influence.
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Gadi Zohar Intro Video