If a Will or Trust on its face meets all of the required legal formalities, the only available basis to attack the validity of such documents is to assert that the decedent either lacked the necessary mental capacity or was subject to undue influence. A petition which makes such allegations must be filed with the probate court, asking that the Will or Trust be declared invalid.

The person who contests the Will or Trust has the burden of proof and must overcome the legal presumption that the documents are valid. However, there are many cases where challenges have been successful. Generally, the decedent’s medical history and the testimony of expert physicians or psychologists can present compelling evidence that the mental or physical condition of the deceased was such that he or she lacked the cognitive ability to fully understand the effect and consequences of the document being signed.

Undue influence can involve intimidation, coercion or simply taking advantage of someone who has been dependent on another. In order to prove undue influence, direct testimony of those who witnessed a beneficiary exerting strong control over an elderly or infirm person, together with medical documentation of the person’s weakened or dependent condition is necessary.

Obtaining good legal advice and representation from an experienced estate planning and probate attorney can help clients avoid a stressful and costly will or trust contest.

Bruce L. Woodbury is an attorney with the law firm of Jolley Urga Wirth Woodbury & Standish. To contact Bruce, call him at 293-3674 or 699-7500, or visit his website at www.juwws.com.