Virtually any issue that can be brought in a probate court can also be litigated there. This page focuses on the two most common areas of probate litigation. Both of these areas relate to a growing problem in our society; elder abuse and exploitation.
Any person who has a beneficial interest in the decedent’s estate can challenge a will’s validity. The challenge is usually premised on the legal concepts of “lack of testamentary capacity” and/or “undue influence.”
“Lack of testamentary capacity” means the person who made the will (the testator) either: 1. did not know basic facts of his/her life; or 2. did not understand the legal affects of the will.
“Undue influence” means the testator’s free will was overpowered by another person, such that the will no longer reflects his/her testamentary intent.
Accounting Actions: Durable Power of Attorney
An individual who executes a durable power of attorney for financial affairs should be commended for their planning and foresight. However, all too often, the assets designated to care for the individual are treated as “found money” by the agent and used for personal enrichment.
In this circumstance, an accounting action can be brought in order to force the agent to disclose the full extent of activities taken on behalf of the principal.