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Will Contests Not Frequent, Cheap or (Often) Successful

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Misconceptions about wills are very common among the general population, and particularly among seniors. There is a widespread notion that one must be very careful about what is included in a will, since it is likely to be contested and the rules are very difficult to follow.

The truth is quite the opposite. Wills are seldom contested, and successful contests are extremely rare. In Arizona (as in most states) there are only three arguments available to any will contestant:

  1. Lack of due execution. If, for example, the decedent did not sign the will himself, or did not have the required two witnesses, it will be invalid.
  2. Lack of capacity. This requires that the person signing the will did not, at the time, know who his family members were, what his estate consisted of or where he intended his assets to go upon death.
  3. Undue influence. Although the decedent may have been competent, he may have been subjected to excessive pressure by someone who benefits from the questioned will.

[For a more detailed discussion of frequent misconceptions about wills and will signings, see Elder Law Issues Vol. 4, Issue 41, April 14, 1997]

Although disgruntled family members frequently feel that “undue influence” perfectly describes the pressure that was brought to bear on a deceased relative, courts have established a very high burden of proof. It is important to remember that family members, business acquaintances, neighbors and others regularly influence each of us; the law only invalidates wills which are the product of undue influence.

Arizona courts have made it clear that “undue influence” means that “the mind of the decedent must have been overpowered at the time the Will was executed.” Furthermore, courts must assume that a properly executed will is valid, and the burden of showing undue influence is usually on the person challenging the document.

Since undue influence is almost always exercised in private, it can be very difficult to show the kinds of acts which give rise to a successful will challenge. For that reason, the courts have given challengers one small advantage; the person contesting a will may utilize circumstantial evidence of the undue influence. In fact, Arizona courts have identified eight factors which tend to show undue influence:

  1. fraudulent representations by the influencer,
  2. hasty execution of the will,
  3. concealment of the new will,
  4. active involvement of the beneficiary in securing the new will (e.g.–making the appointment with the lawyer, preparing the forms, etc.)
  5. inconsistency between the new will and previous estate plans,
  6. unnatural provisions in the new will (in light of family relationships and attitudes of the decedent),
  7. susceptibility of the decedent to undue influence, and
  8. the existence of a “confidential relationship” between the decedent and the influencer (for example, a power of attorney, or a close family connection).

It is important to remember that the existence of one, or even several, of these elements does not automatically invalidate a will. Instead, the cumulative effect of several may amount to sufficient evidence to mount a challenge.
Even if undue influence is shown, it may not necessarily follow that the will is invalid. It may be, for example, that the influence was ultimately unsuccessful, or that the last valid will contains similar provisions. It may also be true that the cost of contesting a will (including hiring experts, taking testimony from witnesses and responding to legal proceedings) is high.

Next week in Elder Law Issues, we will describe a few of the cases of successful (and unsuccessful) challenges to wills for undue influence.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.