Posts tagged duress
What are some other common grounds for challenging a Will?

Although a lot of focus has been placed on "undue influence," some other grounds for challenging a Will include fraud, duress, menace, or mistake. The purpose of this post isn't to delve into particulars of each one but simply to make you aware of their existence. It's important to remember that under California Probate Code Section 6104, "[t]he execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence."

Mistakes in Wills vs. Trusts

Mistakes are treated differently depending on whether they are present in a Will or Trust document.

When there's a substantial mistake of fact or law, a trust may be rescinded. On the other hand, if a Will as a whole is executed with testamentary intent, it can't be overturned on the basis of mistake.

In case you're not sure what a "mistake" is in the estate planning context, here are some examples. A mistake could be one where you didn't realize the effect of what was written in the Will or Trust. Alternatively, a mistake could be more technical in the sense that you didn't know the proper steps required to properly sign your estate planning documents. Still, another form of mistake might simply be a typo that has a substantial unintended effect on the distribution of your assets.

That being said, an experienced litigator in the trust and estates field may leverage one or more of these methods of attacking a Will or Trust, depending on the facts presented.


Why can't I transfer my property?

Sometimes the obstacles to transferring property for estate planning purposes are outside of your control. The restrictions may be due to your marital status or status as a registered domestic partner, or the type of asset, such as an interest in a trust for which you may be beneficiary (i.e., a trust that was not created by you, but for your benefit).

However, restrictions may also be self-imposed, such as by agreements that you have with others not to transfer your property. A major hurdle in transferring property occurs when the transferring person loses the capacity to make the transfer.

Finally, even if you have the legal ability to make the transfer, you may nonetheless, wish to retain absolute control over property.

Lack of Legal Capability

A risk faced by some individuals is the possibility that someone will challenge the estate planning documents after you pass away. This often comes in the form of a challenge to the Will or other estate planning document that you've created.

You may have heard of this terminology before, but the challenges can range from the following:

  1. Failure to follow the formalities required when signing the estate planning documents. 
  2. Lack of capacity, mental or otherwise, to sign the estate planning documents.
  3. The assertion that there was fraud, duress, or undue influence.

Risk Minimization

If you are clearly competent, and your lawyer is not in a position where there's a conflict of interest, others are not unduly influencing the decision-making or otherwise inappropriately pressuring you to make a decision, and the proper formalities of signing your estate planning documents are followed, the risk of someone challenging your estate plan is relatively low. 

Although estate planning may present challenges even after the documents are prepared and signed, the risk of having your transfer fail can be minimized by introducing an independent lawyer to draft the documents. He or she can be on the lookout for potential future causes of challenges to your estate plan and can help you to navigate away from them.