California Trust, Estate & Probate Litigation

We spend a great deal of our time as Trust and Will lawyers pleading with people to create a Will or a Trust as part of their estate plan.  But we rarely discuss how to get rid of those documents if the need ever arises.  The process, called “revocation,” can be a bit more difficult than you might think.

Revoking a California Will

Will revocation is an area of the law unto itself.  In California, there are two options to revoke a Will: (1) create a new Will that specifically revokes the old one, or (2) destroy the original Will by a physical act.  The options for revoking a Will can be found at California Probate Code Section 6120. 

Revocation by a New Will

The first option is the easier and most used of the two.  Whenever you create a Will you typically will find language at the beginning of the documents that says something to the effect of “I hereby revoke all prior Wills.”  This simple sentence is enough to revoke a prior Will; PROVIDED THAT, the new Will is signed with all the proper formalities required of a valid California Will.  In other words, a new, valid Will can revoke a prior Will.

This is true even if the above sentence is not included in the new Will, if the new Will makes provisions that are different and conflicting with the first Will.  So if you give your diamond ring to your daughter in Will one, but then create a new Will leaving the same ring to your son, then the new Will controls and effectively revokes the gifts in the prior Will.  Of course, you never want to rely on an inconsistency—it’s far better to clearly state what you want to have happen to the first Will.

Revocation by Physical Act

A writing is not the only way to revoke a California Will.  You can also do so by a physical act, such as burning, tearing, canceling, obliterating or destroying the Will.  The catch is (1) the physical act must be done by the Testator (that’s the person who created the Will), or at least in the Testator’s presence and at his or her direction.  Once the physical act takes place, the Will is revoked.

Revoking a California Trust

Revocation of a Trust is a bit different from a Will.  And Trust revocation always starts with the Trust document itself because most Trust documents state the method of revocation.

For example, a very common provision in a Trust allows revocation using the following language: “I reserve the right to amend this Trust by a signed writing delivered to the Trustee.”  That sentence, simple as it is, provides the basis for an amendment.  If the Trust is silent as to amendment, then the probate code provides the method to revoke at Section 15401(a)(2), which is a writing (other than a Will) signed by the settlor and delivered to the trustee—a very simple requirement.  Notice that the writing does not have to be notarized or witnessed, it just has to be a writing, signed by the Settlor and delivered to the Trustee.

Of course, a Trust can also be revoked as to a particular piece of property by the Settlor’s act of taking the property out of the Trust.  For example, if I create a Trust and transfer my house into the Trust name, I can revoke the Trust as to that asset by filing a new deed transferring my house out of the Trust.  The Trust then ceases to act over that asset.  That doesn’t necessarily mean that it won’t get put back into the Trust at some point, but once transferred out of the Trust, the Trust no longer controls that assets.

The bottom line: revoking a California Will or Trust is not difficult, but there are a few hoops to jump through if your going to do a proper revocation.

Trust and Will litigation tears families apart.  It may be that family relationships aren't too good to begin with if litigation arises, but taking matters to Court doesn't help.  And as lawyers we have little to no ability to repair family relationships.

In one case, out of the many hundreds I have handled over my career, a client of mine chose to make a bold statement after a family dispute arose.

Her name is Sofia.  Sofia—who didn't have a lot of money—worked as a registered nurse.  While her mother was alive, Sofia helped her with her care.  While Sofia’s father was alive, Sofia sold her home and gave the proceeds of the sale to her parents because they were in need of money at that time.  Her parents, in turn, put Sofia on the deed to their home so that she could be repaid after their deaths.  Over 15 years later, both parents passed away and the house passed to Sofia.

Sofia's brothers and sisters were not too happy about the arrangement and a nasty dispute arose over the property.  But in the end Sofia won out because she had given a large sum to her parents and in return, they gave her their home when they were done with it.

The whole ugly affair did not sit well with Sofia.  So she decided to make a bold statement with the house she received from her parents, she gave the entire thing-100%-to charity.  This was a substantial gift for anyone, as it was for Sofia.  The house was worth around $350,000 and had no mortgage.  That is a large amount of money for a single working woman, something to tuck away for retirement and future care. 

Instead, Sofia gifted the entire home to the Ronald McDonald House charities, which provides housing free of charge to parents who have very sick children in the hospital.  Ronald McDonald House was planning on building a new home in Long Beach, California, and Sofia’s gift kicked-off their fund raising for the new Ronald McDonald house with an entirely unexpected gift.  The home was sold by the charity and now is being used for their charitable purpose.

Sofia's one requirement in making the gift was that it be dedicated to the memory of her parents, David and Teodora Pacheco, and their grandchildren, because they loved their many grandchildren unconditionally.  The kitchen of the new Ronald McDonald house charity will be dedicated to Sofia’s parents, primarily because her mother loved cooking and it was a central part of any family gathering.  A plaque will read “David and Teodora Pacheco Kitchen in honor of their grandchildren.”

Sofia had no obligation to make this gift.  The house was hers and she should have used it to provide for her retirement.  But for the first time in my 11 year career as a California Trust lawyer, Sofia demonstrated the power of personal sacrifice.  She did not have money to spare and could not afford such a generous gift, but she made the gift anyway.  It was important to her to turn a family dispute, one that she alone could not repair, into a lasting tribute to her parents.

Most of us are not capable of giving billions to charity, like Warren Buffet and Bill Gates  But charities, to be successful, don’t need billions (they’d love to have billions, I’m sure, but most operate on far less than that).

Most people make modest charitable gifts to their favorite charity, university or church during their lifetime.  But the amount of gifts each of us is able and willing to make during our lifetime is somewhat limited by our resources.  For example, you can't give your house to charity while you’re alive because you need it to live in; giving it away would be absurd.

What if I told you that you could make a very large charitable gift (large being relative to your own individual resources) to your favorite charity, university or church and never feel the pain of losing your hard-earned assets?  It can be done as part of your California Trust or Will  planning by leaving a charitable gift upon your death.

Think of the power you have.  Making a gift to charity at death is often referred to as “planned giving” or charitable estate planning.  Charitable planning can take many forms, and can get pretty fancy if you want, but it can also be extraordinarily simple by just naming a charitable beneficiary in your Trust or Will.

Now I am not suggesting that you leave all you have to charity (unless you want to), and cut out your children or other heirs entirely.  But I am suggesting that by making a little room in your California Will or Trust for a charitable cause, you can give a gift far bigger than you are able to give during your lifetime and still have plenty left over for your children.

For example, let's say you have a home, a rental house and some money in the bank.  During your lifetime, you live in your home--you don't want to give that up.  And you rely on rental income from your rental, while the money in the bank acts as a safety net in case you need more care and assistance as you grow older.  So there is not much room in your finances for a large charitable gift while you are alive.

But upon your death, if you gave let's say a quarter of your rental property to charity, that could be a significant gift.  Even if the rental home is only worth say $200,000, one-fourth of that would be $50,000!  Could you imagine giving $50,000 to charity during your lifetime?  No.  But as part of your estate plan, a generous gift can be made to the charity of your choosing and your children still receive the remainder of your assets.

Do you think $50,000 is too much?  Make it $10,000, that's still a larger gift than you can make while alive.

There are many good causes out there that would be overjoyed to receive a gift of $10,000.  And they often remember your gift by any number of recognitions. Also, your children can participate in the charitable gifts, including having them make decisions on how the money is spent and the programs that are sponsored by your gift. 

The point is, giving “till it hurts” is much easier to take when you are not here to feel the “hurt.”  And making some room for charity in your Trust and Will is a great way to leave a legacy that will be long remembered by those in need, without hurting those you love.

This video post is our informal discussion of why we practice law.  It is important for us to know our purpose in practicing law.  In fact, we put our purpose on the first page of our website, and we talk about it constantly.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

If your goal is to help keep lawyers employed (and that’s an excellent thing to do in my opinion), then do not change your beneficiary forms on your retirement accounts when you do your estate planning.

By retirement accounts, I mean things like 401(k), 403(b), Pension, and IRA type accounts to name a few. These types of accounts are not able to be held in a Revocable Trust, instead they pass by beneficiary designation.  But all too often, people will go through the work and expense of preparing an estate plan using a Revocable Trust, but then neglect to check the beneficiary forms on their retirement accounts.

The beneficiary designation on a retirement account governs regardless of anything stated in a Trust or Will.  Your Trust or Will could leave everything to your children equally, but if your beneficiary designation names only one child, then that one child takes the entire retirement account.

If that is your intent, to leave a particular account to a single child, then fine.  But neglecting to plan how retirement assets will pass, means full employment for lawyers.  Fine with us lawyers...not so great for the children left behind to litigate the mess.

Worse yet, if your retirement account has no beneficiary named, or the named beneficiary dies before you do, then oftentimes the retirement assets will pass to your Probate Estate, which means they must pass through the Court process of probate before being distributed to your heirs. 

The bottom line is that failing to plan for the distribution of your retirement accounts often means you are planning on litigation in your estate.

I’ve blogged before about using the concept of undue influence to overturn a California Will or Trust.  But knowing the definition of undue influence is only the first step.  To make the concept of undue influence useful, you have to know how to prove the existence of undue influence in a Court of law.  That can be trickier than it sounds.  Let’s walk though the primary options for proving undue influence in California: 

Under California law, undue influence consists of:

• John taking unfair advantage over Jane, who relies on John for her daily living needs; or
• John taking unfair advantage over Jane’s weakness of mind where Jane has Dementia, Alzheimer’s disease or some other type of mental deficit; or
• John taking unfair advantage of Jane’s distressful situation, whatever that may be. 

An Example of Undue Influence: 

It is usually easy to spot undue influence. For example, Jane has three children, namely, John, Jerry, and Jack. Jane is living with John at the end of her life, and relies on John for her daily living needs. John does not like his brothers Jerry and Jack. Six weeks before Jane dies, John drives his mother to an attorney to change her California Will or Trust, which disinherits Jerry and Jack. Now John goes from getting one-third of his mother’s Will or Trust to getting 100 percent. The question: Did John exercise undue influence over Jane? Most likely, yes. But how do you prove undue influence under California law? 

How to Prove Undue Influence under California Law: 

There are two primary ways to prove undue influence under California law—by either (i) shifting the burden of proof to John, in the example above, so he then has to prove an absence of undue influence, or (ii) by Jerry or Jack proving directly that John exercised undue influence over their mother. If at all possible, it is best to shift the burden to John to prove he did not exercise undue influence over Jane because it can be very difficult to prove the absence of something. If you don’t have facts that shift the burden of proof to John, then Jerry and Jack will have the burden of proving the existence of undue influence directly.

 How to Shift the Burden of Proof in an Undue Influence Case:

How do you shift the burden of proof to John so that he carries the burden to prove he did not exercise undue influence over Jane? Under California law there is a presumption of undue influence that arises if you can establish three facts:

• Confidential Relationship: Jerry and Jack must prove that John had a “confidential relationship” with Jane, which can consist of John being Jane’s trustee, or agent under a power of attorney, or conservator, or perhaps, simply being Jane’s son.
• Active Participation: John must have “actively participated” in the preparation or execution of the Will or Trust.
• Undue Benefit: John must receive an “undue benefit” by way of the new Will or Trust.  

You can prove each of these facts where John (i) is the Executor or Trustee of Jane’s Will or Trust, (ii) arranged to have an attorney draft the new Will or Trust for Jane to sign, and (iii) where John’s interest in the Jane’s Will or Trust increases from one-third to a higher amount. 

Once these facts are proven, there is a presumption that John exercised undue influence over Jane causing her to create the new Will or Trust; and the burden of proof shifts to John to prove the absence of undue influence, which is not easy for John to do under this fact scenario. Essentially John has to prove a negative—i.e. that undue influence did not occur. 

 How to Prove Undue Influence Directly:

If you can’t prove facts shifting the burden of proof to John, you must prove undue influence directly. Circumstantial evidence is enough to prove undue influence. Here are the most likely facts you need to prove undue influence directly:

 Disinheriting a child: Provisions that are unnatural, cutting off from any substantial bequests the natural objections of the decedent’s bounty. When Jane disinherits Jerry and Jack, that is disinheriting her children, an unnatural act, which can indicate undue influence.

 Contradicting decedent’s former estate plan: Dispositions at variance with the decedent’s intentions, expressed before the document’s execution. If Jane had a previous Will or Trust that treated her children equally, but a new Will or Trust (or Amendment) contradicts the former Will or Trust (or Amendment), this can add to the conclusion that Jane was unduly influenced.

 Opportunity to control decedent: Relations existing between the chief beneficiaries and the decedent that afforded the former an opportunity to control the testamentary act. If Jane relied on John for her daily living needs, this can add to the conclusion that Jane was unduly influenced.

 Poor mental and physical condition: A testator whose mental and physical conditions are such as to permit a subversion of her freedom of will; and if there is evidence the testator had a weakened state of mind it is easier to demonstrate the pressure from another overcame the testator’s free will.

 Sudden negative shift in attitude: Under California law, courts may infer that Jane’s sudden negative shift in attitude toward Jerry and Jack was caused by John’s poisoning Jane’s mind because the court can find no other rational explanation.

 Decedent’s advanced age: A Will or Trust creator of advanced age at the time a document is signed adds to the conclusion the testator was unduly influenced.

 History of mental deficits: A Will or Trust creator with a history of mental deficits adds to the conclusion the testator was unduly influenced. California Probate code section 811 outlines the likely areas of mental deficits.

 History of Dementia or Alzheimer’s disease: A Will or Trust creator with a history of Dementia or Alzheimer’s Disease adds to the conclusion the testator was unduly influenced.

Testator under conservatorship: A Will or Trust creator that is under a court ordered conservatorship adds to the conclusion the testator was unduly influenced. 

The more of these facts you can establish, the easier it is to prove undue influence directly.

There you have it—a big picture view of how to prove undue influence cases under California law. In future blog posts, I will treat in further detail (i) the burden shift for undue influence cases, and (ii) proving undue influence directly.

There is an old saying in the law that goes “first in time, first in right.”  For Wills, the opposite is true—last in time, last in right.  Typically the last valid Will wins.  But what if the last Will is not valid?  That could allow an earlier Will to apply instead.  And it is this dispute—last Will versus second-to-last Will—that is at the heart of nearly every Will contest lawsuit.

Of course, a Will cannot be overturned just because the heirs or beneficiaries don’t like the Will terms.  There has to be some legal basis to invalidate the Will (see our earlier blog post on invalidating a Will).  Once a legal basis is determined, it’s time to get down to business; actually filing the Will contest.

A Will contest lawsuit is unique in that it requires a few steps, and a few different filings, before the lawsuit is properly “before the Court” (which just means all the correct paperwork is filed so the Court can handle the matter).  Let’s walk through the steps for a properly filed Will contest lawsuit:

Step 1 – Petition for Probate: You have to open a probate estate.  In California, a Will is not is not a Will until it is admitted to probate.  The procedure of admitting a Will to probate is the Court’s method for proving that the Will is valid.  Before being admitted to probate, a Will is simply evidence of a potentially valid Will.  Once admitted to probate, a Will is, by law, a valid Will.

So whether you are trying to admit the last Will or an earlier Will, you must ask the Court to admit the Will to probate and that requires a Petition for Letters Testamentary (also referred to as a Petition for Probate).  Under the Petition for Probate, you recite the facts as they pertain to the Will you want admitted and then you must sign the Petition and file it with the Court. 

What if the opposing party has already filed their own Petition for Probate?  No problem, you file your own Petition for Probate as well (they are referred to as “competing petitions,” but you use the same form whether you’re filing first or second).  It makes no difference who files first, as long as you file before the opposing Will is admitted to probate.

Step 2—The Objection.  The next step is a separate filing called an objection to probate of Will as prescribed by Probate Code Section 8250. This is the actual Will contest filing where you explain why the other person’s Will is invalid and what legal basis (or bases) you are using to dislodge that Will.  A Will contest objection under Section 8250 is unique under the Probate Code in that it is the only probate filing that requires the issuance of a summons (like the ones used for civil complaints).  Both the objection and the summons must be personally served on everyone (and I mean everyone) mentioned in the Will you are trying to invalidate, along with all of the decedent’s heirs (if they are not otherwise mentioned in the contested Will). 

Step 3—Prove your case.  At trial, the proponent of the contested Will must first prove due execution of the Will (which means that it was properly executed as set forth under Section 6110).  Once execution is established, it is then the contestant’s burden to prove any of the legal grounds to invalidate the Will, including lack of capacity, undue influence, fraud, duress, or revocation.  Never forget what your burden is at trial because it will guide your actions in conducting discovery beforehand.

After taking the right steps, your Will contest is on its way through the Court system.  Now the work really begins….

At times, some people become so overly focused on asset protection that they practically throw the baby out with the bathwater to achieve the perceived goal of asset protection. It is a perceived goal rather than an actual goal because so many of the so-called asset protection vehicles don't really protect anything. Many are just window dressing designed to give a false sense of security to people. They sound good on paper or when presented in a nice notebook, but they’re not foolproof in protecting assets from creditors--not even close.

Let's walk through a few examples below to illustrate the point

Personal Residence LLCs. For some reason there has been an increase in people selling the idea of putting your personal residence into a limited liability company (call an LLC) and then giving the LLC a crazy name not associated with your own name. The idea is that once the home is in the LLC it’s protected from creditors. And because of the crazy name it cannot be found by creditors. But does this work? 

No. As a litigation attorney, part of my job is to find assets. An LLC must be filed with the California Secretary of State’s office. Even if the LLC is not created here in California, it must file with California if it owns property or does business in this State. If I were to see someone living in a home owned by an LLC, all I would need to do is request a single paper from the Secretary of State and they would tell me who the owners of the LLC are, who the officers are, and the addresses of the LLC. All this info leads back to the home and I would then know the LLC is a sham--protection undone. Also, this scheme deprives the home owner of their home interest mortgage deduction from the IRS.

Changing Title to Assets.  It seems a common knee-jerk reaction to have one spouse receive notice of a lawsuit and begin transferring all assets into his or her spouse’s name.  Does this transfer protect the assets from a spouse’s creditor?  Absolutely not.  Especially if the transfer occurred AFTER notice of a lawsuit was received because it would then be a “fraudulent transfer.”  We have laws that preclude the transfer of assets in the attempt to avoid a known creditor.  And notice of a lawsuit is a known creditor, therefore the transfer can be undone and the asset attached by the creditor.

Off-Shore Trusts.  Offshore havens such as the Cayman Islands, have historically had laws that made it all but impossible for a creditor to obtain assets located in that jurisdiction.  A person looking to protect assets would place his money with a local trust company and the trust terms would not permit him to receive his own assets when under the threat of a lawsuit.  And since the trust company was outside the U.S., there was no legal process that courts here in the U.S. could use to force payment from the offshore trust.  The down side?  Offshore trusts are not as great as they used to be.  After 9/11, the U.S. government became very aggressive against offshore havens like the Cayman Islands because they were trying to root out money used for terrorism.  The U.S. passed new laws requiring citizens to report any offshore transfer of money and they worked with foreign jurisdictions to obtain the open transfer of information regarding money transfers. 

Finally, while a U.S. Court may not be able to force a foreign jurisdiction to act, they can make life miserable for the U.S. citizen living here, going so far as to impose jail time for not cooperating in obtaining offshore monies.

These are but a few examples of bad asset planning.  Is there any good asset planning?  Yes, but it typically involves planning for children and grandchildren where assets are passed onto them in a trust with creditor protection provisions.

If you are one of those forward thinking people who incurred the time, effort, and expense of creating an estate plan that includes a California Trust (living Trust or revocable Trust--they're the same thing), have you ever looked at it since its creation?  Did you know that your estate plan can become less valuable and your Trust can become less Trust-worthy over time? 

Like anything else, life brings changes.  Changes in tax law, changes in California Trust law, changes in assets owned, changes in debts outstanding, and a whole host of family changes (birth, deaths, marriages, etc.).  Most of these changes can have a substantial, and often negative, effect on your estate plan.  While doing an estate plan is great, checking up on that plan to ensure everything is still going smoothly is key.

For example, whenever I create an estate plan that includes a Trust, my firm will assist the client in transferring assets to the Trust.  Such as preparing a Deed to transfer real property in the name of the Trust.  Yet, as life goes on, the client may sell the house that we transferred into the Trust and buy a new one, but forget to title the new property in the Trust's name--a huge mistake.  A Trust can only control assets titled in the name of the Trust.  A Trust with no assets is no longer a valid Trust (in the legal field we call Trust assets "res" (latin for thing) or Trust corpus and a Trust cannot exist without res or corpus).

Or worse yet, a client refinances his or her home and the finance company pulls the property out of the Trust (this is common practice because lenders are wary of lending to Trusts).  Once the refinance is complete, the house is never put back into the Trust--another big mistake.

Transferring real property back into a Trust is an easy thing to do--just requires a Deed--but failing to do it before the Trust creator (called the Settlor or Trustor) dies creates a huge problem that could result in substantial attorneys' fees and costs. 

This is just one example.  The same applies to family changes, tax law changes and Trust law changes.  So having your Trust and overall estate plan reviewed every two years or so is a very worthwhile activity.  It will keep your estate plan on course and ensure that your plan is implemented when the time arrives. 

Listen to Keith A. Davidson summarize his blog post on the difference in contesting a California Trust and a California Will.

Which is better—A Trust or Will if a fight takes place for your assets after your death?   One of the primary reasons people create Living Trusts (also called Revocable Trusts and Revocable Living Trusts) is to avoid probate. And Trusts can also help in reducing or, in some cases, eliminating estate taxes. But can a Trust also help discourage a contest over an individual’s intended disposition of his or her assets at death?  The answer is a resounding “maybe.”  Let me explain.

Some people believe Trusts better protect against a contest because Trusts are not administered with court supervision. Once the person who created the Trust (referred to as the Settlor) dies, the Successor Trustee begins administering the assets, gathering them up and preparing these assets for distribution to the Trust’s beneficiaries (usually family members), without any need for court supervision. On the other hand, a California Will can only be administered in probate, which requires court supervision. In fact, an Executor is not even appointed to act under a Will until a Petition for Probate is filed with the court and the court appoints the person as executor. Once in court, anyone who wishes to challenge the Will has a ready forum in which to do so. In other words, a contestant normally does not need to open the court process pertaining to a Will—they merely need to show up and file an objection in the probate court.

In contrast, contesting (or challenging) the terms of a Trust is not quite so easy. Trusts can be challenged in court and trustees' actions can be challenged in court, but the person wishing to contest a trust, or its trustee, must take the initiative and bring the matter to court by filing an appropriate petition.  Thus, it is the contestant who has to take the initiative to start the court process when it comes to trusts—they can't just show up and object as in the probate of a California Will.

So back to the “which is better” question—is is a Trust better than a Will in warding off attacks by angry beneficiaries? It depends.  If an heir or beneficiary is set on contesting the document and if the heir has means to hire an attorney, then a Trust is just as vulnerable to attack as a Will—the fact that the heir or beneficiary must start the process will usually not prevent an attack. If, however, an heir or beneficiary does not have the means to hire an attorney and does not know how to bring a trust contest to the Court’s attention, then the trust may be better at preventing attack. A California Will, after all, is already filed in court, which allows a beneficiary to object to it much easier, sometimes without the help of a lawyer.

Therefore, a Trust may have some benefit over a California Will in preventing a contest by an angry heir or beneficiary, but the benefit is relatively small if the heir is ready, willing and able to take action to bring the matter to court.

When creating a California Will there are a few basic steps that must be met from a legal perspective in order for that Will to be legally valid.  In their simplest form, the two areas required for a valid California Will are the necessary “Intentionalities” and the required “Formalities.”

Intentionalities:

Intentionalities  evidence a person’s intent to create a Will.  Will creation requires intent—the person creating the Will (referred to as the “Testator” ) must intend to make a Will.  And there are a number of things that can undermine the necessary intent to make a valid Will.  A short list of such items include: lack of mental capacity, undue influence, fraud, and duress and menace.  The full list of intentionalitiesfollows:

       Intentionalities:

• Intent to create a will
• Capacity
• Undue influence
• Fraud
• Duress and menace.

Formalities:

Formalities refer to the formal requirements for California Will creation.  For example, a Will must be in writing (no oral Wills are allowed), signed by the testator, and witnessed by two disinterested witnesses.  Alternatively, a hand-written Will can be valid if the material provisions are written in the testator’s own handwriting and signed—no witnesses needed (this is referred to as a “Holographic” Will).

       Formalities:

• Written Will
• Signed by testator
• Witnessed by two disinterested witnesses or holographic.

Using these two areas of legal requirements, you can go down the list of Intentionalities and Formalities to determine if a Will is valid or not.  The lack of any one item may result in an invalid Will.  For example, a Will with all the necessary Intentionalities, that is printed from a computer and signed by the testator could still be invalid if it lacks the required two witnesses.  Conversely, a properly executed and witnessed Will could be invalid if the testator lacks mental capacity or if the testator is unduly influenced in making the Will. 

Does that mean Wills are easy to attack?  Not necessarily.  In fact, a vast majority of Will contests that make it to trial fail to succeed.  Of course, this could be due in part to the fact that many of the cases with troubling facts settle before trial.

Keep this list of Intentionalities and Formalities in mind as we submit further blog posts on the component areas—such as undue influence, capacity, fraud, etc.