In estate, will and trust litigation, duress and undue influence are sometimes alleged together. However, while they overlap in some areas, they are distinct legal theories. To claim duress, a person must be oppressed by the wrongful conduct of another. In re Estate of McKenna, 500 S.W.3d 850, 860 (Mo. Ct. App. 2016). It is…
Legal Articles
Will Contests: Grounds, Necessary Parties
A last will and testament may be contested on numerous grounds, the most common of which include challenges for lack of capacity, fraud, duress, and/or undue influence. There are strict, specific deadlines for challenging a will. While the deadline varies, a will contest is usually pursued after a will is admitted to probate. An order…
Declaratory Judgment to Challenge Revocable Living Trusts
The use of revocable living trusts in estate planning is extremely common. Along with the rise of their use, challenges to the validity of revocable living trusts have also risen. Trusts may be contested on a number of grounds, the most common of which are lack of capacity, undue influence, fraud or duress. These claims…
Time Limit and Deadline to Challenge Will
A last will and testament in Missouri (and other states) may be challenged and voided. The most common grounds for a contest are lack of testamentary capacity, undue influence, fraud and/or duress. One of the goals in the estate administration process in Missouri is to have a quick, efficient manner of winding down one’s affairs….
Duress: Trusts & Contracts
Wills, trusts, contracts, deeds and other legal documents may be voided if they were executed under duress. As an initial matter, a duress claim is distinct from a claim to set aside a document based on undue influence, lack of capacity or fraud. To make a successful claim for duress, the plaintiff must prove that…
Contract Under Duress
In breach of contract litigation, many defenses are often lodged by a defendant to attack the validity of the contract or excuse his/her non-performance under the contract. Common defenses in contract litigation include accord and satisfaction, that there is a contractual ambituity, that the other party committed a first material breach, misrepresentation/fraudulent inducement, unconscionability and…
Challenging Nonprobate Transfers (Beneficiary Designations, Transfer on Death, Pay on Death)
Nonprobate transfers are becoming increasingly popular in estate planning. They are simple, avoid probate and allow certain people to receive your properly immediately upon your death. They can be used by themselves or in conjunction with trust or will-centered estate plans. In application, they function by automatically and contractually conveying all ownership of a particular item…