by Sarah Guy

Created on: December 04, 2008   Last Updated: February 22, 2012

The death of a loved one is a trying and emotional time, even in the best of circumstances. When you add in feelings of confusion or betrayal over the terms of the will or trust, it can be overwhelming. If you believe, however, that the content of you loved one's will is circumspect, it's important that you take immediate action to contest the document. While laws vary by jurisdiction, every state or country imposes a strict statute of limitations on contesting a will, and you will need time to garner legal representation and gather evidence to make your case. Most wills or trusts are contested on the basis of one of two assertions: undue influence or lack of capacity.

Undue Influence

An undue influence claim asserts either that fraud was committed in the execution of the will, or that involved parties manipulated the deceased into changing the terms of the will in their favor. This is the most common assertion used to contest a will. If you believe that undue influence was exerted over your rightful inheritance, you will need to prove that an advisor exerted psychological dominance over the deceased for the purposes of obtaining greater benefit for themselves. This could be a case of a lawyer or advisor
manipulating a client into leaving a hefty sum to them, or a young, new wife wheedling her ailing husband into disinheriting his adult children through lies and persuasion.

Lack of Capacity

A lack of capacity assertion claims that the deceased lacked the mental capacity to understand what he or she was doing when the will was written. If you feel that the deceased was operating under insane delusion, or was not mentally capable of making informed decisions at the time the will was created, then you should contest the will on the basis of lack of capacity. If you feel someone has taken advantage of your loved one's diminished mental capacity, you can assert both lack of capacity and undue influence in disputing the will.

Evidence Gathering

Because contesting a will or trust is a legal procedure, akin to a lawsuit, you'll need a lawyer to represent you, and you'll need to gather evidence that is admissible in a court of law. Most of your evidence will fall into one of two categories: witness testimony, or documentary evidence.

A good witness will be someone who is reputable, and who is well acquainted with the facts and circumstances of your case. This could be a friend or a family member, or a professional such as a health care provider, attorney, or

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