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Will Contests

Sometimes when a person dies the children or spouse are surprised to find out that they are not the beneficiaries of the will. Often the person has told the children or spouse what they will receive when the person dies. However, it turns out that some else is receiving a share larger than expected or all of the estate. The deceased may have been ill at the end of their life or had dementia and was dependent on others. The disinherited heir may feel that the deceased was influenced to change their will or trust, or that they did not have the capacity to change their change their will or trust. In these cases, the heir can challenge the will, trust, or property transfer by claiming that it is invalid because the deceased was unduly influenced or lacked testamentary capacity.

Testamentary Capacity = having the knowledge and understanding to make an estate plan. In Arizona the burden for testamentary capacity is quite low. The person making the will or trust only needs to understand three things:

  1.  who their natural heirs would be
  2.  what the person owns ie. real property
  3.  what will happen to their stuff when they die

It is legally difficult to attack a will or trust by claiming that the person lacked the capacity to understand the will or trust. Even a person who has been deemed incapacitated and is under guardianship may have the capacity to change their will or trust if they understand the above three things. If a person did not have capacity and changed their will, trust or transferred property quite often there is also a financial exploitation. The more common claim is that the deceased was unduly influenced by someone to change their estate plan or to transfer property.

Undue influence

The deceased may have been ill in their later years or suffered from dementia and become dependent on others. This situation leaves them vulnerable to someone influencing them to change their estate documents for the benefit of the person helping them. Sometimes a parent’s estate that was previously equally divided among the children is changed to favor the child helping the parents or a spouse is left out in favor of the child who was assisting the parent. For those who have a paid caregiver it is not uncommon to see the unrelated caregiver named as a beneficiary in the will or trust.

Factors for Determining Undue Influence

The court will consider the following factors to determine if there has been undue influence:

  •  he influencer lied to the deceased
  • the will, trust or property transfer was prepared and signed quickly without deliberation or consideration
  •  the execution of the document was hidden from others, such as family members
  •  the person benefiting participated in having it drafted and signed
  •  it was inconsistent with prior estate plans
  •  it was unreasonable in view of the deceased’s circumstances, attitudes, and family
  •  the deceased was vulnerable to undue influence (i.e. had a medical problems)
  •  the deceased and the beneficiary had a close relationship

Everyone is sometimes influenced by others– that is natural. Undue influence must be so overwhelming that the influencer persuades or forces a person to disregard their own, often longstanding, wishes to instead follow the influencers desires which often are for the benefit of the influencer. Put simply, the person making the will, trust or property transfer was not able to make an independent decision because of the control the influencer had over the person. Clients often say to us, “My mom would never have done that or our dad told us for years how everything would be divided.”

If the court finds there was undue influence then the distribution or even the entire will, trust, or property transfer may be determined to be invalid. For example, if the person transferred their home to someone, that transfer could be invalidated, or if they changed the beneficiaries in their will or trust from their children to a neighbor that entire document could be invalidated. In other circumstances the court may find the person had testamentary capacity, acted of their own free will and changed their estate due to a change in their life circumstances and the will, trust, or property transfer may be upheld.

These are emotionally and legally challenging cases involving an analysis of the factual circumstances as well as the law. Kile and Kupiszewski law firm handles all types of estate and probate disputes, including will and trust contests either to challenge the will or trust or to defend the will or trust. We also have experience with financial exploitation matters and will evaluate your case for that claim as well. If you believe that an estate document or property transfer was the result of undue influence or if you have questions regarding a probate dispute, please contact us at 480-348-1590.



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