DECEMBER 29, 1997 VOLUME 5, NUMBER 26
Misconceptions about wills are very common among the general population, and particularly among seniors. There is a widespread notion that one must be very careful about what is included in a will, since it is likely to be contested and the rules are very difficult to follow.
The truth is quite the opposite. Wills are seldom contested, and successful contests are extremely rare. In Arizona (as in most states) there are only three arguments available to any will contestant:
- Lack of due execution. If, for example, the decedent did not sign the will himself, or did not have the required two witnesses, it will be invalid.
- Lack of capacity. This requires that the person signing the will did not, at the time, know who his family members were, what his estate consisted of or where he intended his assets to go upon death.
- Undue influence. Although the decedent may have been competent, he may have been subjected to excessive pressure by someone who benefits from the questioned will.
[For a more detailed discussion of frequent misconceptions about wills and will signings, see Elder Law Issues Vol. 4, Issue 41, April 14, 1997]
Although disgruntled family members frequently feel that “undue influence” perfectly describes the pressure that was brought to bear on a deceased relative, courts have established a very high burden of proof. It is important to remember that family members, business acquaintances, neighbors and others regularly influence each of us; the law only invalidates wills which are the product of undue influence.
Arizona courts have made it clear that “undue influence” means that “the mind of the decedent must have been overpowered at the time the Will was executed.” Furthermore, courts must assume that a properly executed will is valid, and the burden of showing undue influence is usually on the person challenging the document.
Since undue influence is almost always exercised in private, it can be very difficult to show the kinds of acts which give rise to a successful will challenge. For that reason, the courts have given challengers one small advantage; the person contesting a will may utilize circumstantial evidence of the undue influence. In fact, Arizona courts have identified eight factors which tend to show undue influence:
- fraudulent representations by the influencer,
- hasty execution of the will,
- concealment of the new will,
- active involvement of the beneficiary in securing the new will (e.g.–making the appointment with the lawyer, preparing the forms, etc.)
- inconsistency between the new will and previous estate plans,
- unnatural provisions in the new will (in light of family relationships and attitudes of the decedent),
- susceptibility of the decedent to undue influence, and
- the existence of a “confidential relationship” between the decedent and the influencer (for example, a power of attorney, or a close family connection).
It is important to remember that the existence of one, or even several, of these elements does not automatically invalidate a will. Instead, the cumulative effect of several may amount to sufficient evidence to mount a challenge.
Even if undue influence is shown, it may not necessarily follow that the will is invalid. It may be, for example, that the influence was ultimately unsuccessful, or that the last valid will contains similar provisions. It may also be true that the cost of contesting a will (including hiring experts, taking testimony from witnesses and responding to legal proceedings) is high.
Next week in Elder Law Issues, we will describe a few of the cases of successful (and unsuccessful) challenges to wills for undue influence.