Wills & Trusts Can Be Challenged In Probate

Why Do Contests Happen?

A will can look perfectly valid, but it can be challenged on various grounds, including:

  • that it is a fake
  • or, that it was revoked or that the testator was not mentally competent when he or she signed
  • or, on the grounds that a major beneficiary of the will used undue influence to get the testator to sign it.

Will or Trust contests usually come about because late in life a person changes their estate plans to favor a non-relative such as a "new" spouse, or caretaker, "significant other" or other friend over blood relatives. The blood relatives are convinced that the new beneficiary of the estate plan used "undue influence" to get the old man or woman to include them in their estate. Or they come about because a parent treats their children unequally.


Trusts, even though they avoid the probate process, can be challenged in the Probate Court just like wills can be challenged. The difference is that for a will to be effective it must be filed with the Probate Court and a Probate case must be initiated. A trust typically never goes to Court and the expense of the Court preceding is saved. BUT, a person may challenge the validity of a trust or how a trust is administered in the Probate Court.

Holographic (Written Will)

Because a holographic will does not need witness signatures or a notary, a holographic will is most subject to the claim that it is a fake. This issue can be resolved in part by analysis of the testator's handwriting and signature.

Determination of Mental Competency & The Courts

Courts generally apply a rather easy test to whether a person is mentally competent to write or change a will. In other words, if a man of 80 changes his will to favor someone who is not a relative the test is not whether the 80 year old's mind is not what it once was. Rather, the test is did his mind retain enough functioning to know who his relatives are and did he have some reason to favor this new person over his relatives.

On the other hand, Trusts are considered contracts and Courts may be more willing to invalidate a Trust than a Will if the claim is that the person had decreased mental capacity.

Undue Influence Claim

The Courts will look more carefully at a claim of undue influence in the case of either a Trust or Will if the person favored by the change in a Will or Trust had been the Decedent's caretaker. So, if 80 year old Dad who is living independently takes his kids out of his Will and puts in his 40 year "girl friend" the girl friend has a pretty good chance of winning a challenge. But if the 40 year old "girl friend" was helping Dad bathe and dress and eat, the kids have a pretty good chance of winning a Will or Trust contest.

The claims of undue influence and incompetence of the testator usually go together, but not always. The test of the testator's competence is not a tough one. Often Dad (whose wife predeceased him or divorced him), and was an old man when he wrote his will, leaves all or a substantial part of his estate to pretty young woman and Dad's adult children feel this isn't right. In looking at this situation a Court will likely consider the following:

  1. Person’s Right To Choose If of Sound Mind
    Dad has a perfect right to leave his estate to a friend or young woman and leave his children nothing as long as Dad understands that it is natural in most situations for a widowed father to want to leave his estate to his children.
  2. Medical Evidence of Mental Incapacity
    Is there any medical evidence of Dad's mental incapacity? Has he been diagnosed with Alzheimer's or some other senile dementia?
  3. Care Taker Role Vs. Companion
    Did the young woman have control over Dad (aside from the sexual attraction control that many women have over many men)? Was Dad physically dependent upon the young woman for care? Was he physically dependent upon the young woman to write his checks and manage his finances because Dad's eyesight was poor or Dad couldn't do the math to balance a checkbook? Specifically, the Court will take a very hard look at a will written in favor of a "care taker" or someone who was helping the will writer live his life.
  4. False Promises
    Sometimes when a person gets old and is likely to soon die and has money, various relatives or person close to the old guy will pester him for promises that they be left various things. For example, both Girl Friend and Dad's adult Daughter want Dad to promise her his house when he dies. The court understands that this presents an ugly conflict for Dad and that Dad's response may be to make separate and conflicting promises to each that she will get the house. Therefore, testimony about oral promises are not usually given much weight by a Court in a will contest. In other words, most Judges understand that old people may make false promises to live out their last years in peace.

Relevant Questions in A Will Challenge

Aside from the caretaker issue, the following questions are relevant in a Will challenge:

  • Was the person who signed the new will or trust amendment on their deathbed?
  • What do the medical records show about the person's mental status at the time of execution of the new document?
  • How long did the non-relative beneficiary know the person who died? What was the relationship?

Avoiding Contests

It May Be Worthwhile To Have The Will or Trust Writer Voluntarily Submit To An Examination By A Psychologist
If a will or trust change is contemplated late in life when the person losing out by the change may be expected to make a challenge to the new will or trust, it may be worthwhile to have the will or trust writer voluntarily submit to an examination by a psychologist who declares the writer of sound mind in order to make any future challenge very difficult. We do not get involved in this sort of referral, but we can refer you to probate lawyers who do.

Revoking A Will By Physically Destroying The Original

A valid way to revoke a will is to physically destroy the original. Obviously, in some cases many copies may have been made and it may be beyond the testator's control to destroy all copies. For this reason courts want an original will filed. See Will Original vs. Copy. If the original has been destroyed by accident or cannot be located, the court will demand and consider evidence that the destruction or loss of the original was accidental and it may accept a copy. However, if someone challenges the copy the court will probably conduct a hearing to determine if it should accept the copy.