What do you do to contest a will or a trust that was created by a person who drafted it that didn’t have the capacity to do it or was maybe under some sort of undue influence?

One of the most difficult situations to be in is to receive a set of documents from a loved one that disinherits you or leaves you less than you thought you were going to get. We see this weekly. We have people calling saying, “I was left out of the will. I should have been– There’s no way this is what my mom, grandfather, sister, brother would have wanted.” We definitely take those cases but they are very hard to prove. As people age, many times they will draft documents in the throes of Alzheimer’s, but that does not necessarily mean they don’t have the capacity.


The first thing we look at is, did they have capacity? We run into this on the estate planning side of things when asking, “Hey, if we have a question would the doctor sign of saying–,” and so if you can prove the person did not have capacity, then the document itself that you’re contesting would be set aside like it didn’t exist. The problem with that is that you’re filing a petition with the court hoping that there’s some evidence you don’t know about that would prove it. It may just be that you’re just a really rotten kid and you got cut out because you deserved it. I very rarely will draft documents that cut children out, but there are certain times, whether it’s drugs or abandonment, where just because someone is old doesn’t mean they don’t get to make decisions. They still get to decide to leave out a child if they have ignored you for the last 15 years.

Undue Influence

The other possibility would be undue influence. If the document suddenly leaves the money to a friend, or neighbor, or a professional, etc. we will ask, “Wait a minute why would my mom or my dad have left money to the people I don’t know? In fact, they did a will 20 years ago that said leave it to the kids.” In these situations, the person must prove that there was undue influence. Was the person a caretaker, was the person in a position to exert undue influence, was what the will ended up saying unnatural (it didn’t go to the kids), and can you prove somehow that this happened?

There is a process to handle this but I am very picky about these cases because they’re very tough to prove.

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