https://youtu.be/RiKoH_O2Vys
The following is a transcript of this video. For more information, CLICK HERE.
Hi, this is Keith Davidson from Albertson & Davidson. In this video, I’m discussing the type of evidence you need to successfully have a trust or will contest granted by the court.
A lot of times, the first thing that a client will say to us when we first speak with them is “My mother never would have done this.” Or “My father never would have done this.” Or “My grandmother would have never done this and everybody knows that.” And why isn’t that enough to get the trust or will thrown out of court? And the answer is because our trust and will laws require more evidence than just that. So if you were to say, “Well, my mom never would have disinherited me, so when she did this will a week before her death, it must be invalid, because she never would have done that.” That, in and of itself isn’t evidence.
That is certainly your opinion and it may even be a correct opinion and it may even be backed up by other people who agree with your opinion. But what the court needs in order to rule – to overturn a trust or a will, is evidence – admissible evidence that can be presented in court. And you have to have grounds for overturning a document, meaning there has to be either lack of capacity or undue influence or fraud – there has to be some legal basis for it. The fact that you don’t like the will or the fact that you don’t think your mother would have ever disinherited you, that, in and of itself is not a legal basis to set aside a will.
So, for example, with capacity, you have to show for a will that the testator did not understand the nature of their property, they didn’t understand the nature of their relations, their kids and grandkids, and they generally did not understand that they were signing a will. Those are the three legal elements you must have. And you notice that none of those elements have anything to do with whether or not mom would have ever disinherited you. Yes, we’re trying to get to her intent – that’s true. But, we’re also trying to show that she didn’t have the capacity to express that intent because of a lack of capacity and that takes evidence, not just an opinion.
The same is true for undue influence. There’s elements for undue influence. You have to show the victim was susceptible to undue influence because they had a mental condition that caused them to be susceptible to undue influence. You have to show that somebody acted badly. They isolated the person. They manipulated them. They controlled the necessities of living. These are the type of things that you must prove in court. None of those really have anything to do with the fact that your mom would have never done this, your grandmother never would have done this.
So it is, obviously, a very natural inclination, I think, for most people to say “My mom would never would have disinherited me. Can’t we just get the will tossed out?” Well, we might be able to get the will tossed out, but it’s not going to be because of that type of evidence, or those type of opinions. It’s going to be because we can go out and find good solid evidence that is admissible in court in order to prove that that will or trust should be overturned.