How to Prove a Will Was Not Signed Under Duress

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1Building Your Case

2Responding to the Complaint

3Going to Court

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When a person wants to invalidate a will, they might allege that the will was signed under “duress.” Duress typically involves physical attacks or threats of physical attacks. Duress is a form of “undue influence,” and most wills are challenged for undue influence. This means that the deceased’s free will was overcome by another person so that the will does not represent the deceased’s true intentions. To prevent a will from being invalidated, you need to present evidence that the deceased did not sign the will while under duress or undue influence.

Steps

Part 1

Part 1 of 3:

Building Your Case

1. 
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   Identify important parties. If a will is challenged in court, it will often be challenged by disgruntled beneficiaries or individuals left out of the most recent will altogether. These are individuals who believe that the will does not represent the true wishes of the decedent. In their eyes, the will was somehow tainted and signed under duress. In most states (if not all), only "interested parties" can challenge a will. An interested party is usually someone that has, or had, a property interest in the estate being probated.

   • When a will is challenged in court, it will be the job of the executor, and possibly some family members, to defend the will's validity. The executor is the person responsible for making sure the decedent's wishes are carried out and the estate is distributed properly. In addition to an executor, family members who have a stake in the case (i.e., those that could lose a distribution if the will is invalidated) may also be able to step in and defend the will's validity.
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   Read the complaint. When a person challenges the validity of a will, they will file a complaint or petition with the probate court. This person is the “contestant.” You should be notified that the contestant is challenging the will. For example, the contestant or the court might send you a copy of the complaint.
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   Recognize the alleged duress. Duress typically involves threats of violence or actual violence. It is usually rare in the context of wills. You should read the complaint to see what threatening or violent acts are alleged to have influenced the deceased.

   • In some states, the contestant doesn’t have to go into detail in the complaint, so you might not be able to figure it out just by reading the court documents.
   • Instead, you might have to wait for the fact-finding phase of the lawsuit (called discovery) to identify what actions led to duress.
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   Pinpoint any alleged undue influence. “Undue influence” includes duress and is a broader concept. Most wills are challenged for undue influence (and not simply duress). There is no simple illustration of undue influence, but courts generally look at the following factors:

   • the mental fitness when the deceased signed the will
   • the physical health of the deceased when he or she drafted the will
   • how involved the beneficiary was in the creation of the will
   • the beneficiary’s conduct
   • any lies told to the deceased to get him or her to write the will a certain way
   • how dependent the deceased was on the beneficiary
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   Check if a presumption applies. In some states, there is a presumption of undue influence if certain factors are present. For example, in Illinois, undue influence is presumed to exist where:

   • The deceased had a “fiduciary” relationship with a beneficiary. This fiduciary relationship might be an attorney-client relationship, but it can arise in other situations where the deceased put total trust in the beneficiary. For example, you might have been in control of the deceased’s finances. This probably creates a fiduciary relationship.
   • The deceased trusted and confided in the beneficiary.
   • The beneficiary prepared the will or helped procure it.
   • The beneficiary would receive a “substantial benefit” under the will.
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   Contact the lawyer who drafted the will. Evidence of duress and undue influence usually shows up in how the will was created. Contact the lawyer who helped draft the will. Ask the lawyer who contacted him or her about drafting the deceased’s will.

   • For example, if the deceased took the lead on creating the will, then there is some proof that he or she was not unduly influenced by anyone.
   • However, if you contacted the lawyer about drafting the will and you answered most of the lawyer’s questions, then there is some proof that you were controlling or influencing the deceased.
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   Contact the people who witnessed the will. Most wills have to be witnessed by two people who watched the deceased sign the will. They can also testify as to whether the deceased signed the will freely or whether he or she seemed under duress.

   • If you were hovering over the deceased during the will’s execution, and you received a big gift under the will, then this is some proof that you were unduly influencing the deceased.
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   Gather proof that the deceased was of sound mind. You can help disprove duress by showing that the deceased was of sound mind when he or she drafted the will. If the person was independent and clear-thinking, then there is some proof that they were not unduly influenced by anyone.

   • You can talk to people that knew the deceased. Ask if they noticed any cognitive decline. Was the person suffering from dementia or forgetfulness? How reliant were they on their caretaker?
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   Gather proof of the deceased’s physical health. A person who is physically fragile or ill is also more likely to be unduly influenced. Physical health is another factor that a court looks at. You should try to get evidence that the deceased was healthy when he or she signed the will.

   • You can try to get copies of medical records by contacting the estate’s personal representative and asking. If the personal representative hesitates, then you can subpoena these records during discovery.
   • You can also get testimony of the deceased’s friends or family.
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    Meet with an attorney. Only a qualified attorney can help you build the strongest case possible to defeat a will contest. If you are the estate’s executor or personal representative, then you may have already hired an attorney to help you probate the estate. Schedule an appointment and show your lawyer the contestant’s complaint.

    • You can also get referrals to an attorney by contacting your local or state bar association. Bar associations are organizations made up of attorneys and they serve the community by providing referrals to member attorneys.
    • You should seriously consider hiring the attorney to represent you in the lawsuit. Probate procedure is very complicated, and only a qualified attorney can help you navigate all the rules. At your consultation, you should ask how much the lawyer charges.
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Part 2

Part 2 of 3:

Responding to the Complaint

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   Get your court’s local rules. Each court should publish rules which tell you important information about drafting and filing legal documents. Typically, these rules are published on the court’s website.

   • Read the rules carefully. If your answer is missing any required information, then the court will reject it.
   • Pay attention to deadlines. You probably have to move quickly and answer the complaint within 30 days or so.
2. 
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   Draft an answer. You can respond to the contestant’s complaint by filing an answer. In this document, you respond to each allegation made in the contestant’s complaint. A properly drafted answer should contain the following:

   • The caption. This is the information at the top of the complaint: the name of the court, the names of the parties, and the case or docket number.
   • A title. Generally, you can title your answer “Answer to” and then insert the title of the complaint.
   • Answers to each statement in the complaint. You need to admit, deny, or claim that you lack sufficient knowledge to admit or deny each allegation. Go down through them individually.
   • Your signature and the date.
3. 
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   Add a certificate of service. Depending on your court, you may have to add a certificate of service to your answer. This document serves as proof that you sent a copy of your answer to the other side. You should print up the certificate of service on a separate sheet of paper.

   • The certificate of service should include the name and address of the person to whom you served a copy of your answer. It should also state the method of service (such as hand delivery or first class mail).
   • In some courts, you must have the server complete a “proof of service” or “affidavit of service” form instead. The server then returns this form to you and you file it with the court. Read your rules to see whether you must use a proof of service form or a certificate of service.
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   File the answer with the probate court. When you finish your answer, you should make several copies and take the original and copies to the court clerk. Ask to file the original.

   • Be sure to file before the deadline.
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   Serve notice to interested parties. Be sure to send a copy of your answer to relevant parties using the method you identified in your certificate of service. Always remember to keep a copy for yourself as well.
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Part 3

Part 3 of 3:

Going to Court

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   Get your witnesses lined up. You should identify the witnesses you want to testify on your behalf and serve them with subpoenas. It is important that the witnesses only testify as to what they observed. They can’t offer an opinion as to whether or not the will was signed under duress. However, they could testify to the following:

   • A friend or family member of the deceased could testify that they saw you and the deceased together often. This person could testify that they never saw you threaten or abuse the deceased. This helps disprove duress.
   • The deceased’s lawyer can testify that the deceased took the lead on drafting the will and that you had no or little input. This testimony could help prove that you didn’t exercise undue influence.
   • The deceased’s doctor could offer an expert opinion that the deceased was in sound mental and physical health when the will was created. This evidence helps prove that you didn’t unduly influence the deceased.
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   Create exhibits. You can introduce helpful documents into court as exhibits. You can turn a document into an exhibit by affixing an exhibit sticker on the document. You will probably need to make multiple copies of exhibits. Make at least two—one for you and one for the other side. The following might be helpful documents you can introduce:

   • A power of attorney that shows someone other than you had power over the deceased’s finances and health care decisions.
   • A copy of the will that shows you did not receive a substantial benefit under the will.
   • Written communications between the deceased and his or her lawyer showing the deceased’s motivations for creating the will.
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   Cross-examine the contestant’s witnesses. The contestant bears the burden of showing that duress or undue influence existed. They will probably present witnesses who will testify that they saw you threaten the deceased or control the deceased’s behavior. You must sit quietly and listen to the witness.

   • Your lawyer can cross-examine the witnesses. Cross-examination can serve different purposes. For example, your lawyer might want to undermine the witness’s credibility by pointing out that the witness didn’t see you and the deceased very often, so he or she can’t really know what kind of relationship you had.
   • You also can undermine a witness’s credibility by showing bias. If the witness would inherit money if the will is invalidated, then you have shown that the witness has an incentive for shading the truth.
   • If you are representing yourself, then see Question Witnesses when Representing Yourself for more information on cross-examination.
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   Present your own witnesses. You should be able to present witnesses second. Make sure not to ask the witness “leading” questions. A leading question is one that contains its own answer. For example, “You met with the decedent alone, correct?” is a leading question because it asks for a “yes” or “no” answer. Instead, ask a series of more general questions:

   • “What is your job?” [Answer: I’m a lawyer.]
   • “How long have you worked as a lawyer?” [Answer: I’ve been a lawyer for 20 years.]
   • “What field do you specialize in?” [Answer: I write wills.]
   • “Who did you meet with on April 12, 2014?” [Answer: I met with one client, Mrs. Alice Smith.]
   • “Who came to your office with Mrs. Smith?” [Answer: No one. She came alone.]
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   Make a compelling closing argument. Closing argument is your chance to pull together all of the evidence and argue that the judge or jury should adopt your interpretation of the evidence. You should mention specific pieces of evidence to refresh their memories.

   • For example, you could say, “Remember you heard from Mrs. Smith’s doctor, who met with her the week that she signed her will. And his testimony was very clear: she was in excellent mental health. And her attorney, Mr. McLeod, said the same thing. He even asked her why she was changing her will. And she explained that she didn’t feel any pressure, that it was her own idea.”
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   Await the judge's decision. After trial, the judge will consider all of the evidence presented and will determine who won. If you win at trial, the will will be probated according to the decedent's wishes as if duress was never brought up. However, if you lose, all or part of the will might be invalidated as the judge would rule that it was signed under duress.

   • If you do not agree with the judge's ruling, you may be able to appeal to a higher court. Appeals can only be made for mistakes of law, which means you can only appeal if the judge made a legal mistake (as opposed to a factual one). If you want to appeal, you need to do so soon after the trial decision is made. In some cases, you might only have 30 days to file.
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