Lack of Capacity? Undue Influence?
When a family conflict erupts over a will, a trust, or the control of a shared family asset, the court battle rarely turns on a sudden twist or a complex legal mystery. Stripped of the emotional drama, almost every estate dispute hinges on the exact same two core challenges—and very often, a combination of both: lack of mental capacity and undue influence. Whether you are currently navigating a sensitive probate disagreement or simply trying to insulate your family’s estate plan against future conflict, understanding these twin pillars of estate litigation will help you protect what matters most.
Understanding The Two Most Common Causes of Probate Litigation
According to the Legal Information Institute (LII) at Cornell Law, “testamentary capacity”
Is about someone’s ability to make a will:
Most states have both an age requirement (usually 18 years old) and a mental capacity requirement. To have mental capacity, the testator must have the ability to know:
- The nature/extent of their property
- The natural objects of their property;
- The disposition that their will is making; and
- The ability to connect all of these elements together to form a coherent plan.
On the other hand, as attorney Joshua Curtis explains, undue influence “assumes the signer may have had cognitive ability, but lost their free agency. This claim arises when someone with close access and opportunity—frequently a caregiver, a relative, or a late-in-life spouse—uses coercion or manipulation to substitute their own desires for the signer’s true intentions.”
The chances that claims of undue influence and or lack of capacity will interrupt smooth and cordial closure of an estate increase if there has been a simmering conflict in the family, a lack of communication that has left close relations baffled, or simply an heir with hurt feelings. As Ashmore Law Firm points out:
These claims are attractive to a disappointed heir because they are easy to allege and hard to disprove after the fact. The signer is often unavailable or unable to testify. The witnesses are the same family members who are fighting. And memory itself becomes the evidence: someone recalls Dad forgetting what city he was in, and that recollection carries weight it never would have had while he was sitting across the table from you.
To avoid the possibility of claims of undue influence or lack of capacity, Ashmore Law encourages working with an attorney who follows these best practices in estate planning:
- Do it early. A plan made at 60, updated at 70, and confirmed at 80 is nearly impossible to attack. A plan first made at 82 invites the question of why it changed.
- Get a contemporaneous capacity letter from the client’s physician when there is any reason to think one might be needed later. It is a small step that closes a large door.
- Meet with the client alone. The spouse, the children, and anyone who benefits from the document should not be in the room when the client tells the attorney what they want. We note that in the file.
- Use independent counsel for the spouse when a marital agreement is part of the plan..
- Explain the plan to the family while the client can still explain it themselves. A parent who sits down and says, “Here is what I have decided and why,” takes away the argument that the plan was someone else’s idea.
Good To Know: Probate Is Normal, Litigation Is Not
Probate litigation is not the same as the ordinary public process of probate. Although most families at some point end up following local probate protocols to settle the affairs of a deceased loved one, they can avoid probate litigation, which only becomes necessary in the event of a dispute. The absence of clear plans and communications, sudden or surprising changes, festering conflicts, and mistrust tend to pave the path to the lengthy, costly, and disruptive courtroom battles known as probate litigation. As attorneys at Lewis Van Sickle explain: “Probate litigation refers to legal challenges that arise during the probate process, which is the legal procedure used to distribute a deceased person’s assets. Unlike uncontested probate, which proceeds smoothly through the courts, litigation involves disputes that require court intervention.”
Probate Bonds Made Simple
It’s common for probate courts to require fiduciaries, such as executors, personal representatives, and administrators to obtain probate bonds. Essentially, a probate bond serves as a guarantee that the fiduciary will properly handle the debts and assets of the estate of the deceased in accordance with the law. Attorneys at Heiligman & Mogul, P.C explain that probate bonds protect the interests of the estate and beneficiaries:
A probate bond, also known as an estate bond or surety bond, …serves as a financial guarantee for the actions of an executor or administrator (personal representative). The bond protects the interests of beneficiaries, creditors and others by ensuring the personal representative will administer the estate according to the law and the wishes outlined in the will … .Should this person or institution mishandle the estate…the bond provides a financial recourse for the injured parties.
Courts set the amount of a probate bond, generally based on the size of the estate and any other pertinent factors related to local probate protocols and the circumstances of the deceased. The probate bond is paid for by the fiduciary appointed to handle the estate (e.g. the executor, administrator or personal representative). However, it is not necessary to pay the full amount of the probate bond. To get a probate bond, you work with a reputable surety bond company and pay a small percentage of the total bond amount.
Nationally recognized Colonial Surety Company makes it quick and easy to obtain probate bonds of all kinds. Our user-friendly online service allows you to quote and obtain a bond that is instantly available to download or e-file with the probate court.
Bonds Made Speedy and Easy for Probate Attorneys and Clients
Attorneys anywhere in the country can help clients quickly secure accurate fiduciary or court bonds with just a few clicks on The Partnership Account® for Attorneys. Simply select the bond needed, send it to your client for payment, and then download, e-file or print the bond.
Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on.
Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
In business since 1930, Colonial Surety Company is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA. Our customers have awarded us a 4.8 Trustpilot score. Whenever and wherever you need a fiduciary, court, surety or fidelity bond, trust Colonial Surety Company: www.colonialsurety.com.
