Guarding Against Will and Trust Challenges Alleging Duress, Undue Influence and Lack of Capacity

When you’ve acted responsibly and created a will or trust to govern distribution of your assets, you deserve to have your instructions carried out faithfully when the time comes to do so. Unfortunately, there are many instances where someone challenges a legal instrument due to alleged lack of capacity, duress or undue influence. While there’s no way to control what actions others take in the future, there are methods to discourage and defeat potential challenges. 

Some states give residents a fairly simple and powerful tool to safeguard their estate planning documents. They allow testators and trust grantors to include a “no contest” clause that prevents someone who contests the validity of the instrument from obtaining any proceeds from it. This is also called an “in terrorem” clause. 

New Jersey does not honor no-contest provisions unless the party making the challenge lacks probable cause to do so. However, there are ways you can guard against potential problems with the enforcement of the terms in your estate planning documents, such as:

• Document your mental capacity — A legal instrument is not enforceable if the person who is creating it lacks sufficient mental capacity. You can demonstrate sound mind when creating your will or trust by consulting with your attorney when you are mentally alert and having witnesses present during the signing of your documents. If you believe a question might exist about your capacity, you could have your physician attest to your mental soundness.
• Communicate your wishes — Late, unexpected changes to a will or trust might make people believe that the terms do not reflect your true intentions. If you’re open about your wishes and communicate them to others, it’s much more difficult to claim that the instructions you left were the result of duress or undue influence. 
• Avoid the appearance of undue influence — To avoid claims of undue influence, make sure that your estate planning process is free from outside interference. Meet privately with your attorney and avoid having beneficiaries or other interested parties present during discussions about your will or trust.
• Work with an experienced lawyer — Some wills and trusts, particularly do-it-yourself documents, are not valid because they are poorly written or fail to follow legal requirements. An experienced estate planning attorney can ensure that your document is clear, enforceable and able to withstand a challenge.  

By taking these steps, you can protect your trust or estate against unnecessary disputes and feel confident that your wishes will be honored. At The Paton Law Firm LLC in Fair Lawn, I help North Jersey clients prepare thorough, enforceable wills and trusts, tailored to each client’s situation and goals. Please call 201-470-4801 or contact me online for a free initial consultation.