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Why Can’t the Will Just Be Thrown Out?

Many times clients will tell us that their mom, dad, grandmother, whomever would never have disinherited them and everybody knows that to be true. Why isn’t that enough to overturn a Trust or Will?

The answer lies in the type of evidence you must provide to the court if you want the court to overturn a Trust or Will. The evidence you need must help establish one of the legal grounds for overturning a Trust or Will. Your belief that you mother would never disinherit you is not a legal ground, it is just your opinion. It may be a correct opinion, but it is not enough to meet the legal requirements to overturn a Trust or Will.

For example, one of the most commonly used legal grounds for invalidating a Will is lack of capacity. To prove lack of capacity you must have evidence that you can use in court to establish that your mom (1) did not know the type of property she owned, (2) did not know her relatives, and (3) did not know she was signing a Will. And your mom’s lack of knowing these things must be based on a mental defect—meaning medical evidence to prove she was incapable of knowing them.

Notice how none of the three elements have anything to do with you belief that your mother would never disinherit you. Instead, the elements focus on your mother’s mental defects, and whether that mental defect rendered her incapable of understanding her property, relatives, or the fact she was creating a Will.

The same is true for undue influence, where you must prove that your mom was susceptible to undue influence, and that the bad actor took actions to isolate your mom. In other words, it comes down to your mother’s state of mind and the bad actor’s actions in your given case. Again, nothing here has anything to do with you believing that your mother would never disinherit you.

You may succeed in overturning a bad Trust or Will, but it will be based on solid, admissible evidence—not on your opinion of your mother’s intent. Of course, it is only natural to believe that a parent would never disinherit you. And that may even be a truthful statement. But it won’t win the day in your Trust or Will lawsuit. Instead, you should use your belief as your motivation to find the right evidence and take the right actions to stand up for your mother’s true intent.