How to Prove a Will Was Signed Under Duress

Explore this Article

parts

1Contesting the Will

2Gathering Evidence of Duress or Undue Influence

3Going to Court

Other Sections

Tips and Warnings

Related Articles

References

A will signed under duress is invalid because wills must be signed voluntarily. Generally, duress includes physical attacks or threats of physical violence. In probate, duress is a form of “undue influence” over the deceased, and you should challenge the will for “undue influence” because this is the term most often used in probate. There is no simple definition of what qualifies as “undue influence.” However, the judge will generally look to any threats a person made or how dependent the deceased was on the person alleged to have unduly influence him or her.

Steps

Part 1

Part 1 of 3:

Contesting the Will

1. 
   1
   Check if you can sue. Your state law will probably limit who may contest a will. For example, in Michigan, you must be someone who was left property in the will (beneficiary) or someone who would inherit if the will were invalid (an heir or beneficiary under a prior will).

   • If you were just a good friend of the deceased then your state may not let you sue, unless you were left money under the current or prior will.
   • To check whether you can sue, you should read your state’s law on will contests. You can search the Internet for “your state” and “will contest.” Some states publish their laws online.
   • You can also research your state’s laws at your nearest law library, which may be at the courthouse or a nearby law school.
2. 
   2
   Draft a complaint. After a person dies, the executor (“personal representative”) named in the will must get the will and submit it to the court to be admitted. As a beneficiary or heir, you should be contacted. You can contest the will by drafting a complaint to challenge the will’s validity. You can file the complaint before or after the will has been admitted by the court. Check your state law to see how much time you have to file after the will has been admitted.

   • Your court might have a form complaint or examples that you can use to draft your complaint. Check with the court clerk where the will was filed.
   • Alternately, you could have a lawyer draft the complaint for you. Will contests are complicated, and you would benefit from hiring a lawyer. To find a qualified probate lawyer, contact your local or state bar association and ask for a referral.
   Advertisement
3. 
   3
   Complete the complaint form. Print neatly or enter the information using a typewriter. The purpose of the complaint is to give the judge some background on the case. You don’t have to prove duress at this point, but you do have to allege that the deceased signed the will under duress. A proper complaint will include the following:

   • Identify the deceased as the “decedent.”
   • Identify yourself as the “contestant” to the will.
   • Identify the court’s power to hear the case (“jurisdiction”), which typically stems from the fact that the deceased resided in the county where the will has been submitted for probate.
   • Provide background facts, such as the date the decedent died, the date the will was signed, and why you think the deceased signed while under duress.
   • Contain your allegation that the will is invalid. For example, you could write: “Contestant alleges that the Will should be set aside because Decedent was unduly influenced to sing the Will by the compulsion and argument of others.”
4. 
   4
   File the complaint. Once you have completed your complaint, make several copies. Go to the court and ask the clerk to file. The clerk can stamp your copies with the filing date.

   • You will probably have to pay a fee to file your lawsuit. The amount will differ by the court. Call ahead of time and ask about the amount and acceptable methods of payment (credit card, check, cash, etc.)
   • If you can’t afford the fee, then ask for a fee waiver form.
5. 
   5
   Serve notice on other parties. Generally, you have to give other interested parties notice that you are filing the lawsuit to challenge the will. A party is an interested party if they could have brought a lawsuit challenging the will.

   • Your probate court may have different methods of giving notice. In some courts, the clerk will send notice to interested parties. In other courts, you may be responsible with serving notice of the lawsuit on interested parties.
   • Check with your court rules regarding service of process.
   Advertisement

Part 2

Part 2 of 3:

Gathering Evidence of Duress or Undue Influence

1. 
   1
   Identify duress. A person signs a will under duress when they face threats or force at the hands of another person. Common examples of duress include:

   • physical attack
   • threats of a physical attack
   • withholding food, water, or medicine from a person, or threats to withhold the same
2. 
   2
   Identify undue influence. Most wills are challenged for “undue influence,” which includes duress but is broader. With undue influence, the deceased’s free will is overcome by someone exerting pressure. Courts have said that it is difficult to pin down exactly what qualifies as undue influence. Generally, however, there are two ways you can prove undue influence: direct evidence of undue influence or indirect evidence using a presumption of undue influence.

   • With direct evidence, you show that someone’s acts overpowered the deceased’s free will. For example, you could show how an elder’s caretaker threatened the elder and withheld food until the elder changed her will to benefit the caretaker.
   • In some states, there is a “presumption” of undue influence when a person with power over the deceased helped procure the will and received a major benefit under the will. Here, you don’t need direct evidence of threats or other manipulation. Instead, the relationship between the beneficiary and the deceased, plus the fact that the deceased left a big gift to the beneficiary, creates a presumption that undue influence was exerted.
3. 
   3
   Contact the people who witnessed the will. In most states, two people must witness the will being signed. These people could have helpful information about whether the deceased appeared under duress. You should try to find them and interview them.

   • If the will was signed a long time ago, then it might be hard to find the witnesses. However, you can do a search online to find out whether they are still living and where.
   • Ask the witnesses what they remember about the will signing. How did the deceased seem? Was he or she shaky and nervous? Did the deceased seem totally reliant on the beneficiary?
4. 
   4
   Get evidence of manipulation. There are many kinds of manipulation. Not all manipulation is threatening, though it often is. You should look for evidence of the following:

   • Threats. Did someone threaten to physically harm the deceased unless they wrote their will a certain way? You should talk to people who saw the deceased regularly and ask if they witnessed any verbal or physical threats.
   • Withholding food or medicine. Elderly people are often totally dependent on other people for food, medicine, and care. Did the caretaker threaten to withhold food or medicine unless the deceased left them money or property?
   • Fraud. The caretaker could have lied to the deceased about certain facts, which induced the deceased to draft the will a certain way. For example, a deceased could have been told that her son had died and that she needed to change the will to leave her property to someone else. You should ask the lawyer who drafted the will if the deceased changed the will under false pretenses.
5. 
   5
   Find other evidence of undue influence. Someone can also unduly influence the deceased by keeping him or her away from other family members. This type of isolation can create undue influence because the elderly person feels totally dependent on the beneficiary.

   • Talk to family and friends and ask if they were able to contact the deceased or if a caretaker kept them secluded and isolated from family and friends.
6. 
   6
   Get evidence to establish a “presumption” of undue influence. Check your state’s law to see if your state allows you to establish a “presumption” of undue influence. For example, in Illinois, you can establish a presumption of undue influence by showing the following:

   • A fiduciary relationship between the deceased and a beneficiary who is the dominant party. The fiduciary relationship can be one of law, such as an attorney-client relationship, or one where the deceased totally trusted the beneficiary to handle some aspect of his or her affairs, such as financial affairs.
   • The deceased trusted and confided in the beneficiary. You will need witness testimony to prove that the deceased trusted the beneficiary. Or you could show that the deceased trusted the beneficiary enough to give him or her power of attorney.
   • The beneficiary procured or prepared the will. For example, you could have the lawyer who drafted the will testify that the beneficiary contacted him or her to create the will.
   • The beneficiary received a substantial benefit under the will. You can use the copy of the will to show the benefit this person would receive.
7. 
   7
   Use discovery techniques to find helpful evidence. After you file your request to challenge the will, you probably will be able to engage in some fact-finding. This fact-finding is called “discovery.” You can generally use the following techniques:

   • Request documents. You can request copies of helpful documents. For example, you could get evidence that the beneficiary had control over the deceased’s finances by requesting copies of any power of attorney or bank documents showing access.
   • Ask questions using interrogatories. These are written questions the witness answers under oath. For example, you could ask the caretaker whether he or she contacted a lawyer to write the deceased’s will. You could also ask for a list of medications the deceased was taking.
   • Ask questions in a “deposition.” You can depose a witness, which means you ask questions and the witness answers them under oath. A court reporter typically takes down the questions and answers. You can use the deposition to ask the lawyer who drafted the will questions about the deceased’s intent when making the will. The attorney-client privilege is generally waived in this situation.
8. 
   8
   Serve subpoenas on your witnesses. To guarantee that your witnesses show up the date of the trial/hearing, you should serve them with subpoenas. A subpoena is a legal request to show up at court on a particular date and time to give evidence.

   • Ask the court clerk for blank subpoena forms. You will have to fill them out and then serve them on the witnesses.
   • Check your court rules to find out how much advance notice you must give the witness. You can’t spring the subpoena on the witness the day before your trial. Instead, you must generally give the witness a couple weeks’ notice.
9. 
   9
   Put your evidence in order. Before your trial or hearing, you need to get your documents lined up. You should go through your papers and find helpful documents that support your argument that the deceased signed the will under duress or undue influence.

   • You can turn a document into an exhibit by attaching an exhibit sticker in a corner. Make sure the sticker doesn’t obscure important text. You can find exhibit stickers in an office supply store or ask the court clerk if they have any.
   Advertisement

Part 3

Part 3 of 3:

Going to Court

1. 
   1
   Dress appropriately. How you look will influence your credibility. For this reason, you should always dress appropriately when appearing in court. Because courts are conservative places, you should dress in a way that doesn’t draw attention to yourself. Now is not the time to express your individuality.

   • Men can wear suits. At a minimum, a man should wear a shirt and tie along with dress pants (no blue jeans). He should also wear neat and clean shoes.
   • Women can wear skirt suits or pant suits, as well as conservative dresses. Women should make sure that clothing isn’t too tight. As a general rule, if you could wear it to a club then you shouldn’t wear it in court.
   • Avoid wearing baggy pants, shorts, flip flops, T-shirts, tank tops, hats, or sunglasses.
2. 
   2
   Present your witnesses. You will be able to call your witnesses first. If you have a lawyer, then he or she should handle the trial for you. If you are representing yourself, then you will need to ask your witnesses questions.

   • Remember that a witness can only testify as to what he or she personally observed. For example, a witness can testify that they saw the deceased being slapped or threatened. However, they can’t testify that their friend saw that.
   • For tips on how to question a witness, see Question Witnesses when Representing Yourself.
3. 
   3
   Cross-examine the other side’s witnesses. The other side might present witnesses to testify. For example, the beneficiary who received a large share of the estate might testify that he or she didn’t unduly influence the deceased.

   • Your lawyer will have to cross-examine witnesses. One purpose of cross-examination is to show how the witness is biased. For example, the witness could stand to inherit money under the will if it is not invalidated. In this situation, he or she has a reason to bend the truth.
4. 
   4
   Make your final argument to the judge or jury. The purpose of closing argument is to remind the jury of important pieces of evidence and to explain that the evidence shows the deceased signed the will under duress or undue influence.

   • If you are trying to prove a presumption of undue influence, then go back over your jury instructions and make sure that you presented evidence (testimony or documents) for each element.
   Advertisement

Expert Q&A

Search

Add New Question

Ask a Question

200 characters left

Include your email address to get a message when this question is answered.

Submit

Advertisement

Tips

• Before bringing a will contest, you should analyze the benefits of the contest against the costs. For example, it could cost you several thousand dollars and over a year of your time to contest the will. However, you might only stand to gain $1,000 from a successful contest. In this situation, it may be in your best interest not to sue.
  Thanks

  Helpful0Not Helpful0

Advertisement