There are a number of avenues open to challenge a will. One of the most common challenge is to assert that a will was made under duress or undue influence. Undue influence means that there is an influence (usually another person) who overpowers or subverts that of the testator (the person making the will) and causes the testator to make a will which he would otherwise not have made. Duress seems to be somewhat self-explanatory. If a person signs any document under the fear that if she or she does not do so then physical harm may come to them–such a feeling can rightly be termed “duress.”
An example undue influence in the will making process would be a situation wherein Granny is checked into a nursing home by her children, who, visit frequently, but cannot provide the round the clock care which Granny requires. Four months later, Granny dies, and to everyone’s astonishment, her nurse, Florence, produces a will which leaves everything to her, a “relative” stranger.
Such a will may be relatively easy to overturn because of the presence of a close family, the short length of time Granny knew Florence, the large amounts of time Florence spent alone with Granny, and Granny’s physical dependence on Florence. But with the removal of any of these elements, a challenge becomes more difficult.
Moreover, some wills have a “no contest” clause which functions to disinherit or greatly diminish the award of any beneficary who contests a will. However, in the event of a successful challenge, the no contest provision is often voided along with the will. But making such a decision requires knowing all of the facts.
If you are considering a will contest, please contact Andrew J. Bolton, Attorney at Law, at 936-435-1908 or 281-723-2791 to schedule an appointment.