Kentucky law states that any party involved in a will contest cases is entitled to a jury trial. If you have found yourself in the midst of dispute regarding a will or trust, you need an experienced trial lawyer instead of simply an “estate planning lawyer” or a “probate lawyer”. With almost 20 years experience as a Kentucky trial lawyer, Christopher Van Bever is just the lawyer you are looking for. Over the years, he has successfully handled cases involving will contests, undue influence, and other probate or trust matters.
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Wills can be challenged on the basis that the decedent (referred to as the “testator”) was not of sound mind at the time the will was executed and as a result, could not know or understand what he or she was doing. When a will or trust document is challenged based on this point, it is considered to be a challenge on grounds of competency or testamentary capacity. Additionally, a will can be challenged if it is believed the execution was procured using undue influence or fraud. A legal action (lawsuit) in which a will is challenged is more commonly known as a “will contest”.
Unfortunately, it is not uncommon for family, friends, and caregivers to use undue influence, and possibly fraud, to coerce an infirm or elderly person into changing their will. Anyone who has been negatively impacted by a beneficiary change, will change, or transfer of land and/ or other assets that is the result of undue influence or fraud has the right to file a lawsuit and request that the courts void the effect of such transfer or change.
To determine if a will should be declared invalid due to the decedent being of unsound mind, a jury considers factors including disease, failing memory or mind, old age, and physical weakness. In will contest cases in which a will is challenged as the result of undue influence, establishing a “confidential relationship” between the decedent and the party who is allegedly responsible for undue influence, results in a substantial legal shift. If it is determined the person had a confidential relationship with the decedent, this person is expected to prove, by “clear and convincing evidence” that the will isn’t the result of undue influence. The above rules regarding undue influence, confidential relationships, and the clear and convincing standard also pertain to transfers made by still living persons and asset transfers prior to death (inter vivos).
There are several ways to establish the existence of a confidential relationship. Kentucky law states that a person who was given unrestricted power of attorney by the testator before the execution of the will being challenged is usually held to have had a confidential relationship with the testator if the person used the power of attorney prior to the execution of the will. Alternatively, if the testator didn’t give power of attorney to anyone, a confidential relationship can be established by demonstrating that a person has a dominant relationship over a testator or by showing that the testator placed confidence and trust in the person.