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Was duress or undue influence present in creating a will?

It is not unusual for an angry relative to contest a will, especially when there are significant assets awaiting distribution from the decedent’s estate.

The angry party may proclaim that the testator wrote the will under duress or that undue influence was involved. What is the difference and what can you do?

The meaning of duress

Duress involves exerting unlawful pressure on an individual. The perpetrator may use a threat or even violence to achieve his or her end. For example, someone who wants a significant portion of an estate may threaten to harm the testator's family unless he or she is a major beneficiary of the will.

Undue influence defined

One person can alter the decision of another by using a position of power to exert undue influence. A greedy relative may influence a testator who is ill, and therefore weak and impressionable, to change his or her will in favor of the relative.

What happens in probate

The basic reason for a probate proceeding is to validate the will of a decedent. The will names an executor and identifies the beneficiaries. If a beneficiary believes that there is something wrong with the will, and that the decedent may have been the victim of duress or undue influence, a court action may follow. The beneficiary would have to prove that in preparing the will, the testator was under the control of someone with nefarious intent. In will disputes, undue influence is the ground the aggrieved party most often uses.

Getting clarity

There is a fine line between using duress and using undue influence over someone. However, in the former situation, the person threatened loses his or her consent, whereas in the latter, consent is present although influenced by the stronger, more powerful person. Many times, asset distribution of an estate will occur without incident, according to the decedent’s wishes. Nevertheless, an estate planning attorney will be prepared to go to trial if necessary in order to settle any dispute that might arise.

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ANDERSEN PLLC
17015 N. Scottsdale Road, Suite 225
Scottsdale, AZ 85255

Phone: 480-900-3539
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