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CHALLENGING A Will

| Jul 6, 2021 | Firm News

Written By:  Robert L. Buzzendore, Esquire

Disgruntled, scorned or disinherited heirs may claim the decedent’s Will was invalid. A child from decedent’s first marriage may dislike being disinherited in favor of step-mom, or a child may believe he was the rightful heir and not his sibling. Various claims exist to challenge a Will such as capacity, undue influence and fraud. How difficult or easy is it to challenge a Will? The courts have developed standards to determine if a probated Will is invalid. Three potential claims are discussed below: undue influence, capacity, and fraud.

Undue influence occurs when the person’s mind is prejudiced or his or her free agency is destroyed.  Proof may consist of “the imprisonment of the mind, fraud or threats or misrepresentations or circumstances of inordinate flattery, or physical or moral coercion to such a degree as to prejudice the testator’s mind”. Other types of proof consist of a confidential relationship where a person receives a substantial benefit at or around the time of the Will because of that confidential relationship with testator. A weakened intellect may prove undue influence. A weakened intellect is when a mind is inferior to normal minds in reasoning power. However, a physical disability by itself is insufficient to prove a weakened intellect.

There is a presumption undue influence has not occurred and the person claiming undue influence must prove otherwise. The proof must show undue influence existed at the time the person signed the Will.

Capacity relates to a person’s ability to sign a Will. A person must be at least 18 years of age and of “sound mind.” A person capacity’s is viewed at the time he or she signed the Will. A person must have knowledge regarding his assets and who he desires to receive those assets. Memory impaired by age or disease does not necessarily prove incapacity. Also, physical issues are insufficient if mental capacity exists. As with undue influence, there is a presumption of capacity.

Fraud is another potential claim to challenge a Will. It is different than undue influence. Fraud occurs when someone uses a trick or misrepresentation which results in the person giving her property to someone contrary to her wishes.

A person claiming fraud must prove the decedent had no knowledge of the concealed or misstated facts and if decedent knew the truth, she would not have given her property to the person named in the Will.

A person challenging a Will has a high burden of proof. The standard is clear and convincing evidence which is the highest standard of proof in a civil case. “Clear and convincing” evidence is so clear that the person deciding the case can decide it without hesitancy of the truth of the matter.

A probated Will is presumed valid and a person has a high burden of proof. Attorneys who prepared the Will and attended the signing are routinely called as witnesses in challenges to a Will, as are their legal assistants who also sign as witnesses AND the Notary Public who notarizes the testator’s/testatrix’s signature. As part of our consultation and when signing a Will, we observe the client and discuss various matters to ensure the client is of sound mind and is not being pressured to give property in a certain way.  It is a reason why we ask others not to attend the consultation or Will signing even if the person drove the client to the office. If necessary, we would videotape the signing. Our goal is to ensure the client’s interests are protected. If you have questions about challenging a Will or you need a Will, we are available to assist you.

Shepley v. Richardson, 3211 EDA 2019

© Copyright by Hoffmeyer & Semmelman LLC,  June 2021