Will

For a will to be admitted to probate, it must be clear that the testator acted freely in expressing his testamentary intention. A will executed as a result of undue influence, fraud, or mistake can be declared completely or partially void in a probate proceeding.

Undue Influence Undue influence is pressure that takes away a person's free will to make decisions, substituting the will of the influencer. A court will find undue influence if the testator was capable of being influenced, improper influence was exerted on the testator, and the testamentary provisions reflect the effect of such influence. Mere advice, persuasion, affection, or kindness does not alone constitute undue influence.

Questions of undue influence typically arise when a will deals unjustly with persons believed to be the natural objects of the testator's bounty. However, undue influence is not established by inequality of the provisions of the will, because this would interfere with the testator's ability to dispose of the property as he pleases. Examples of undue influence include threats of violence or criminal prosecution of the testator, or the threat to abandon a sick testator.

Fraud Fraud differs from undue influence in that the former involves MISREPRESENTATION of essential facts to another to persuade him to make and sign a will that will benefit the person who misrepresents the facts. The testator still acts freely in making and signing the will.

The two types of fraud are fraud in the execution and fraud in the inducement. When a person is deceived by another as to the character or contents of the document he is signing, he is the victim of fraud in the execution. Fraud in the execution includes a situation where the contents of the will are knowingly misrepresented to the testator by someone who will benefit from the misrepresentation.

Fraud in the inducement occurs when a person knowingly makes a will but its terms are based on material misrepresentations of facts made to the testator by someone who will ultimately benefit.

Persons deprived of benefiting under a will because of fraud or undue influence can obtain relief only by contesting the will. If a court finds fraud or undue influence, it may prevent the wrongdoer from receiving any benefit from the will and may distribute the property to those who contested the will.

Mistake When a testator intended to execute his will but by mistake signed the wrong document, that document will not be enforced. Such mistakes often occur when a HUSBAND AND WIFE draft mutual wills. The document that bears the testator's signature does not represent his testamentary intent, and therefore his property cannot be distributed according to its terms.