A beneficiary of a will who is not happy with the will can contest the will. There are a number of ways to contest a will. One can invalidate a will by showing that the decedent lacked the mental capacity to make a will. Alternatively, one can show that a third party exercised undue influence over the decedent at the time the will was written. Undue influence can void what appears to be an otherwise valid will.

Undue influence consists of an act that has the affect of overcoming the decedent’s free will in the execution of a will. There must be evidence of fraud and coercion (either mental or physical coercion).

In undue influence will contests, courts look for circumstantial evidence. Courts do this because there is generally no direct evidence of the undue influence because the decedent is dead. To determine whether undue influence has been made on the decedent, the courts will generally consider whether:

1. the decedent was susceptible to influence (e.g., the decedent was of old age, in ill health, etc.),
2. the influencer had an opportunity to exert influence,
3. the influencer had the disposition or motive to exert influence,
4. the influencer took an active part in procuring the will (such as drafting it), and
6. the resulting will has the appearance of being influenced.

In most cases undue influence is made by a sibling who has a close relationship with the decedent. In other cases, undue influence is made by the decedent’s caretaker. Undue influence can also be made by a parent so that their children take from the grandparents instead of the parents siblings.

When a confidential relationship exists, then only one of the previous elements needs to be present for a presumption of undue influence to be found. Confidential relationships include husband and wife, attorney and client, priest and parishioner, mother and son, and doctor and patient. Once there is a presumption of undue influence, the burden in court generally shifts to the other party to show that there was no undue influence.

In addition to contesting a will based on undue influence, a beneficiary of the will can contest the will based on fraud. Now let’s consider how fraud can invalidate a will.