If your loved one unexpectedly changed a will or trust, you might be wondering what to do. Or perhaps a family member recently passed away and the property distribution was drastically different from a previous estate plan, or what you were told to expect. These types of situations are highly sensitive and emotional, especially if you’re considering contesting the will or trust. Let’s take a look at how best to navigate these processes.
What Is a Will?
Generally speaking, a will is a legal document that describes your wishes for the distribution of your assets after your death, including your real estate and personal property. It can also name an estate executor or personal representative and nominate a guardian for any minor children. The person who is creating a will is called the “testator.”
The legal standards for will documents differ between states, but every state requires four fundamental requirements to be met.
For a will to be valid, all of the following must be true:
- The will is signed and witnessed.
- The will shows testamentary intent.
- The testator was of legal age at the time the will was executed.
- The testator had testamentary capacity at the time the will was executed.
Signed and Witnessed
For a will to be legally executed, the testator must voluntarily sign it. The law considers the signature to be evidence that the will is the testator’s and that they agreed to its contents.
Additionally, at least two witnesses must be present for the execution of the will. The witnesses will sign the will to confirm that the testator intended for the document to be their will and that the testator signed it.
Testamentary intent means that the will must indicate the testator’s wish for the document to be their will. A will can evidence testamentary intent with a simple statement like “This is my last will and testament.”
Most states do not allow people younger than 18 to create legally-binding wills, but some states set a lower minimum age. Also, most states allow some minors, such as emancipated minors or underage military members, to make wills.
For a will to be valid, the testator must have been of “sound mind” when they executed it. For a testator to be of sound mind, they must understand three basic ideas:
- That they are creating a will by signing the document.
- The nature of the property that is disposed of in the will.
- Who will inherit their property under the terms of the will.
If the testator did not understand these concepts when the will was created, the probate court may determine it is invalid.
What Is a Family Trust?
In general, a trust is a legal arrangement where one party (the “trustee”) agrees to hold the legal title to trust assets and administer the trust for the benefit of another (the “beneficiary”). The person who creates the trust by transferring property to it is called the “grantor,” “settlor” or “trustor.”
A family trust is simply a category of trust where the trust beneficiary or beneficiaries are your family members. Two kinds of trusts that are commonly used in estate planning are testamentary trusts and intervivos trusts aka living trusts.
Testamentary trusts are created by the grantor’s will. The will establishes the trust, states what property should be transferred, and names the trustees and beneficiaries. Testamentary trusts are irrevocable and cannot be changed since they are not created until the grantor passes away.
Living Trusts or Intervivos Trusts
Living trusts are established while the grantor is still alive, and generally remain revocable while the grantor remains alive. Grantors usually can change revocable trusts at any time or revoke them entirely. Upon the grantor’s death or incapacity, a revocable living trust becomes an irrevocable trust.
Can a Will or Family Trust Be Changed?
Yes. During a testator or grantor’s lifetime, they are free to change a will or family trust. To change a will, the testator may do one of the following:
- Revoke the previous will and issue a new will.
- Create a codicil.
A codicil is an amendment that changes the existing will without revoking it. After the testator’s death, both documents will be interpreted together when executing the will. Codicils are typically only used to make a few small changes.
A grantor may change a family trust during their lifetime by either changing their will (testamentary trusts) or changing, amending or amending and restating the trust (intervivos or living trusts). Once the grantor passes away or becomes incapacitated, the trust will become irrevocable and cannot be modified.
What if a Will or Trust Was Changed Due To Undue Influence or Duress?
If a will or trust was changed due to undue influence or duress, it can be deemed invalid. Undue influence means that a third party compelled or coerced the testator or grantor to change their will or trust. The influencer must exert an extreme level of pressure that overcomes the testator or grantor’s free will. Duress is a specific type of undue influence where the influencer uses physical force or threatens physical violence.
Can I Contest a New Will, Codicil, Trust or Amendment?
Potential, current, or previous beneficiaries and heirs can contest a new will, codicil, trust or amendment in probate court based on claims of fraud, undue influence or incapacity. To successfully invalidate the will or trust, the challenger must provide evidence that the document does not align with the testator’s true wishes.
Fraud can be shown where someone other than the decedent signed the document at issue, or the decedent was tricked into signing the will or trust.
Proving undue influence can be tricky, but challengers can provide direct and indirect evidence to argue their case.
Direct evidence shows that the influencer’s actions overpowered the testator’s free will. One example of direct evidence might be that the testator’s caretaker withheld food until they changed their will to the caretaker’s benefit. Unfortunately, this type of direct evidence is often unavailable.
However, indirect evidence can also be used to prove undue influence. Examples of indirect evidence that support a finding of undue influence in a new will or trust include:
- The testator or grantor is at risk of being taken advantage of due to their age, health, or mental capacity
- The testator or grantor is elderly and made dramatic changes to an existing will or original trust document
- The property distribution in the new will or trust considerably differs from how the testator or grantor told people they planned to distribute their property
- The property distribution in the new will or trust is unexpected and unexplained
- The property distribution in the new will or trust substantially differs from earlier versions of the will, trust, or other important documents
- The influencer had a dependant or confidential relationship with the testator or grantor
- The influencer was present when the new will or trust was executed
- The influencer benefitted from the will or trust
Some states create a presumption of undue influence when a person with power over the testator helped create the will or trust and received an extensive benefit from the will. In these situations, a challenger does not have to provide any direct evidence of undue influence. Instead, the relationship between the influencer and the testator, plus the fact that the deceased left a significant gift to the beneficiary, creates a presumption that undue influence was exerted and the person benefited has the burden of proving the opposite. Still, the contestant will need to file an action with the probate court to invalidate the document, just with the benefit of the presumption working in their favor.
When Should I Contact an Estate Attorney?
Contesting a will or a trust is a complicated process. If you believe that your loved one changed their will or trust because of undue influence, duress, or other unjust circumstances, you should contact an estate attorney, immediately. An experienced estate lawyer can explain the most effective legal tools available to address the will or trust’s validity, and your ability to get your rightful inheritance. And in many cases, the costs of your estate litigation attorney may be covered by the trust, or paid on a contingency basis, only if you win.
Have questions? We’re happy to discuss.
Call (424) 320-9444 or email [email protected]
About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.