The Ultimate Guide to Duress and Estates

Duress and claims of duress often come into play in estate conflicts and trust litigation. For example, if a will or trust is changed to favor one beneficiary over another, it’s common for the negatively affected heirs to investigate why they’re missing out on their rightful inheritance. We see cases every day in which duress comes into play. Let’s take a look.

What Is the Definition of Duress?

Duress is defined in the United States as the unlawful use of physical force, false imprisonment, threats of violence, or psychological pressure to compel someone to do something they do not want to do. If this type of extreme pressure causes a person to act in a way they ordinarily would not, the action is said to have been committed under duress.

In a legal sense, duress occurs when a third party forces someone to do something, such as changing a will, updating a trust, or signing a contract, by threatening their personal safety, reputation, family, financial well-being, or other personal matters. When someone only agrees to execute a document because they are being intimidated, the law is likely to void the contract, will, or trust document.

Is Duress Subjective?

Yes, duress is a complex, fact-intensive claim to pursue. If a legal document was signed under duress, the document is invalid because the threatened person did not sign it voluntarily. The analysis of whether duress occurred is personal to the threatened person and their fear of the harm threatened.

Suppose you have a deathly fear of spiders that causes you to have extreme panic attacks at the mere sight of a spider. If someone held up a jar full of spiders and threatened to release them if you did not sign a contract, you have a strong argument that you were acting under duress if you signed the contract. However, for someone without your phobia, this kind of threat will probably not rise to the level of duress.

What Is the Definition of an Estate?

An estate, most simply put, is what someone owns when they die, and that is sometimes referred to as their net worth. Net worth is determined by subtracting any debts and liabilities from the value of all the property a person owns or controls, including real property, personal property, investments, and other assets. The property may be titled solely in the estate owner’s name, held jointly, or owned through a trust. Estate assets might also include money generated upon the person’s death, such as a life insurance policy. 

How Can Duress Affect an Estate, Will, or Family Trust?

A will is a legal document that outlines how you would like your executor or personal representative to distribute your estate after you die. The person whose estate is disposed of in the will is referred to as the “testator.”

A trust is a type of legal arrangement where one person (the “trustee”) agrees to hold the legal title to a person’s estate property and manage it for the benefit of another (the “beneficiary”). The person who creates the trust and transfers title to property to it is referred to as the “grantor,” “trustor” or “settlor.” A family trust is a type of trust where the beneficiaries are the grantor’s family members, usually a spouse and children. 

Commonly, elderly parents can be subject to duress when they create a will or a trust to distribute their estate property to their children and family. Sadly, some children will take advantage of vulnerable parents and pressure them to change their will or family trust using threats or physical force or other intimidation techniques, such as withholding food, medical care, and affection.

What If a Will or Trust Was Changed Under Duress?

If a will or trust was created or changed under duress, it is not legally valid because the estate owner must sign these documents voluntarily. Potential or previous beneficiaries and heirs can open a case in probate court to contest a will or trust document changed under duress. The contestant must prove with evidence that the will or trust does not align with the testator’s true wishes and that it was procured through the intimidation tactics of the person who benefited.

Evidence of Duress

Here are some examples of the type of wrongful act that can prove an estate owner changed their will or trust under duress: 

  • Physical attacks or bodily harm
  • Threats of physical aggression or bodily harm
  • Withholding food, water, or medicine
  • Threats to withhold food, water, or medicine
  • Threats to cause significant economic loss.
  • Threats to humiliate or otherwise disgrace the estate owner or their family

You can also present circumstantial evidence to help support your duress claim, such as:

  • The estate owner was vulnerable because of advanced age, poor health, or limited mental capacity.
  • The estate owner had a close or confidential relationship with the influencer.
  • The influencer was involved in the execution of the new will or trust document.
  • The influencer benefitted from the new will or trust.
  • The property distribution in the new will or trust document is substantially different from how the estate owner had previously told people they planned to distribute their property.
  • The distribution of property in the new will or trust document has radically changed from earlier versions.

Duress vs. Undue Influence

Duress is a particular type of undue influence. Undue influence is a much broader category of behavior that does not require direct threats or force. Instead, it is based on psychological or mental coercion. Undue influence occurs when the influencer compels or coerces the estate owner to change their will or trust using extreme pressure that overcomes their free will.

Proving undue influence is simpler than proving duress, as no evidence of actual threats is required. Instead, you will only need to present evidence that shows that the influencer illegally took advantage of a close, confidential, or fiduciary relationship with the estate owner to benefit themselves.

Duress vs. Coercion

Coercion is the act of persuading someone to do something by using force or threats. Sound familiar? The terms “duress” and “coercion” are often used interchangeably. In fact, Black’s Law Dictionary defines duress as “any unlawful threat or coercion used… to induce another to act… in a manner [they] otherwise would not.” 

However, there is a minute distinction between duress and coercion. Duress refers to the feeling of compulsion the victim experiences when the influencer overcomes their free will. Coercion refers to the threats or force that cause the victim to experience duress. In other words, coercion is the cause, and duress is the result.

When Should I Contact an Estate Attorney?

If you think that a loved one was the victim of undue influence, coercion, or duress, you should immediately contact an estate attorney to determine what your rights are. 

Contesting a will or a trust is emotionally and legally challenging. The guidance of an experienced probate litigation lawyer can help you successfully invalidate a will or trust that was signed under duress. In many cases you also may be able to invalidate a will signed under these circumstances due to lack of testamentary capacity, which means that the testator was not of sound mind when the will was executed.

Have questions? We’re happy to discuss.

Call (424) 320-9444 or email [email protected]

About RMO, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

Share on:

Most Popular

Search Topics

Read More

About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

Related Articles