Generally speaking, a will is a legal document that describes your wishes for the distribution of your assets after your death, including your real estate and personal property. It can also name an estate executor or personal representative and nominate a guardian for any minor children. The person who is creating a will is called the “testator.”
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Can a Will or Family Trust Be Changed?
Yes. During a testator or grantor’s lifetime, they are free to change a will or family trust. To change a will, the testator may do one of the following:
Revoke the previous will and issue a new will.
Create a codicil.
A codicil is an amendment that changes the existing will without revoking it. After the testator’s death, both documents will be interpreted together when executing the will. Codicils are typically only used to make a few small changes.
A grantor may change a family trust during their lifetime by either changing their will (testamentary trusts) or changing, amending or amending and restating the trust (intervivos or living trusts). Once the grantor passes away or becomes incapacitated, the trust will become irrevocable and cannot be modified.
What if a Will or Trust Was Changed Due To Undue Influence or Duress?
If a will or trust was changed due to undue influence or duress, it can be deemed invalid. Undue influence means that a third party compelled or coerced the testator or grantor to change their will or trust. The influencer must exert an extreme level of pressure that overcomes the testator or grantor’s free will. Duress is a specific type of undue influence where the influencer uses physical force or threatens physical violence.
Can I Contest a New Will, Codicil, Trust or Amendment?
Potential, current, or previous beneficiaries and heirs can contest a new will, codicil, trust or amendment in probate court based on claims of fraud, undue influence or incapacity. To successfully invalidate the will or trust, the challenger must provide evidence that the document does not align with the testator’s true wishes.
Fraud can be shown where someone other than the decedent signed the document at issue, or the decedent was tricked into signing the will or trust.
Some states create a presumption of undue influence when a person with power over the testator helped create the will or trust and received an extensive benefit from the will. In these situations, a challenger does not have to provide any direct evidence of undue influence. Instead, the relationship between the influencer and the testator, plus the fact that the deceased left a significant gift to the beneficiary, creates a presumption that undue influence was exerted and the person benefited has the burden of proving the opposite. Still, the contestant will need to file an action with the probate court to invalidate the document, just with the benefit of the presumption working in their favor.
When Should I Contact an Estate Attorney?
Contesting a will or a trust is a complicated process. If you believe that your loved one changed their will or trust because of undue influence, duress, or other unjust circumstances, you should contact an estate attorney, immediately. An experienced estate lawyer can explain the most effective legal tools available to address the will or trust’s validity, and your ability to get your rightful inheritance. And in many cases, the costs of your estate litigation attorney may be covered by the trust, or paid on a contingency basis, only if you win.
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RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas.
Our founder, Scott E. Rahn has been named “Top 100 - Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation