An undue influence claim is one of the two most common ways to legally attack a trust, will, or non-probate transfer. There is a “presumption” of undue influence if: (1) the influencer obtains a substantial benefit from the document, (2) the influencer was active in procuring the document, and (3) there was a confidential relationship…
Legal Articles
Summary Judgment on Undue Influence, Incapacity Cases
Summary judgment disposes of a claim without a trial in any number of circumstances. It is rare, however, for a claim involving incapacity or undue influence — particularly in the context of a will contest or trust contest — to be disposed of on summary judgment. Summary judgment is rarely appropriate in cases involving proof…
Duress versus Undue Influence; Trust Contests & Litigation
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…
Undue Influence Between Spouses/Husband and Wife
Undue influence is a legal theory which may be used to invalidate a document, usually a will, trust or non-probate transfer. Undue influence occurs when a signer of a document is influenced by “force, coercion, or overpersuasion” such that it destroys the signer’s free agency. Tobias v. Korman, 141 S.W.3d 468, 475 (Mo. Ct. App….
Trust Contests: Clear and Convincing Evidence
It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964). The evidence to justify cancellation of a will or trust on grounds of incapacity…
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…
Will Contest, Multiple Wills, Res Judicata
If a will contest is successful, then the legal effect is that the will is invalid and void. Section 473.083.7 (A will contest determines “intestacy or testacy or which writing or writings constitute the decedent’s will.”). Accordingly, assuming there is no prior will, the Court finds that the person died intestate/without a will in the…
No-Contest Clauses, Validity
No-contest clauses are frequently used in trusts and wills to prevent lawsuits challenging the validity of a will or trust. They typically provide that if someone challenges the document that the challenger is automatically disinherited. No-contest clauses are strictly enforced without regard to any exception based upon the good faith and/or probable cause of the…
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….