Your will or trust is only as strong as its ability to hold up under challenge. Those challenges are becoming more common. A disappointed family member can contest a will or trust by claiming you lacked the mental capacity to sign it or that it resulted from fraud, mistake, duress or undue influence. Because people are living longer and updating their plans later in life, more people sign their plans at an age when a relative can credibly argue that the person signing was confused, vulnerable or steered by someone close to them. The good news is that there are practical steps you can take now to make sure your wishes hold up.
Key takeaways:
Will and trust contests are becoming more common, and timing is part of the reason. A family member can challenge a will or trust by claiming the person lacked mental capacity or signed because of fraud, mistake, duress or undue influence. Because people are living longer and updating their plans later in life, relatives can more believably argue that the signer was confused or under someone's influence.
Capacity is judged one decision at a time. The law has no single test for mental capacity, so a person can have capacity for one document but not clearly for another step.
Leave a clear record that every decision was your own. Your attorney's detailed notes, and a doctor's evaluation if there are health concerns, can become key evidence later. At the signing, expect neutral witnesses, no beneficiaries in the room, and questions about your plan in your own words.
Consider extra protections but know their limits. In some states, a court can confirm a will while the person is still alive and able to explain their wishes. A no-contest ("in terrorem") clause takes away what a beneficiary would receive if they challenge the plan. How strictly these clauses are enforced varies widely from state to state.
Plan early and keep the plan current. A plan signed while you are clearly healthy is far harder to challenge than one signed during a crisis. A consistent series of documents reflecting the same wishes over many years makes a sudden challenge less convincing. Events like marriage, divorce, selling a business or a health diagnosis should each prompt a call to your attorney.
Know that ‘capacity’ depends on what you are signing
The law does not apply a single test for mental capacity. You may have the capacity to sign one document, while your capacity to take another step is open to question. For example, if you are signing a new will while also getting married later in life, a court may judge each of those actions separately, and each could be the basis for a challenge. Your attorney will want to confirm and record that you understand each specific decision you are making.
Make sure your decisions are clearly your own
The most contest-resistant often argue two things at once: that you did not fully understand your plan, and that someone pressured you into it. Even if you clearly have capacity, a challenger may claim you were more susceptible to influence. The goal is to leave a clear record that you understood what you were doing and that you made every decision yourself. Here is how you can help:
Meet with your attorney alone. Expect your attorney to ask family members, caregivers or new companions to step out while you discuss your plan and give instructions. This protects you, not just the plan.
Explain your reasons for changes. If you are leaving a child out, providing for a caregiver or making a significant departure from an earlier plan, tell your attorney why in your own words. A written record of your reasons can be powerful evidence later.
Handle the engagement yourself. Where possible, contact the attorney, schedule meetings and pay fees yourself rather than having a beneficiary do so. If a family member helps, expect your attorney to confirm the arrangements directly with you.
Expect your attorney to document your capacity
If someone challenges your plan, your attorney’s notes may become key evidence. Expect your attorney to ask you about your assets, your family and how your plan works, and to take detailed notes on your answers. If there are any health concerns, your attorney may suggest an evaluation by your doctor or another qualified professional around the time you sign. This is not a sign of distrust; it is one of the strongest ways to protect your wishes.
Know what to expect at the signing
The signing meeting often determines your plan’s strength. Your attorney will likely use experienced, neutral witnesses and ask that beneficiaries not be in the room. Your attorney may ask you open-ended questions about your documents and your intentions, so be prepared to describe your plan in your own words. In some situations, your attorney may discuss whether to record the signing, which has both benefits and drawbacks.
Ask about confirming your plan during your lifetime
Not every dispute has to wait until after death. In some states, you can ask a court to validate your will while you are alive and able to explain your wishes, which can be a strong defense against later challenges. Disputes can also arise during your lifetime, such as through guardianship proceedings or challenges to a late-life marriage. Whether a lifetime option makes sense depends on your circumstances and where you live, so ask your attorney whether it is available and right for you.
Consider adding a no-contest clause
A no-contest clause, sometimes called an “in terrorem” clause, provides that a beneficiary who challenges the will or trust gives up what they would otherwise receive. The clause works best as a deterrent when the person it targets has something meaningful to lose, so your attorney may suggest leaving a potential challenger a gift large enough that they will think twice before risking it in court. A no-contest clause offers little protection against someone you have left out entirely.
Enforcement of these clauses varies widely from state to state. Some states enforce them strictly, others will not enforce them if the challenger had a good-faith reason or probable cause to bring the challenge, and a few states do not enforce them at all. Many states also allow certain actions, such as asking a court to interpret your documents or questioning a fiduciary’s conduct, without triggering the clause. Your attorney can draft the clause to fit the law where you live, define what counts as a contest and coordinate it with your other documents so that it adds real protection to your plan.
Don’t wait to plan
The best protection against a challenge is a current, complete estate plan. As people build wealth, gain prominence or face unexpected circumstances, estates without a plan become especially vulnerable to disputes. Keeping your plan comprehensive and always up to date is essential.
What this means for you:
Plan early. A plan signed while you are clearly healthy is far harder to challenge than one signed during a crisis.
Update regularly. A consistent series of documents reflecting the same basic wishes over many years makes a sudden challenge much less persuasive.
Review after major life events. Marriage, divorce, the sale of a business, starting a new venture or a health diagnosis should each prompt a call to your attorney.
You build a plan that holds up over time, not on the day you sign. By understanding how courts judge capacity, keeping your decisions clearly your own, supporting your attorney’s documentation, preparing for the signing, asking about lifetime options and keeping your plan current, you give your wishes the best chance of holding up.
Join us in New York City
To explore this topic further with Katten's Private Wealth team, attend the upcoming 2026 Private Wealth and Fiduciary Seminar New York on November 4. Space is limited; register today to reserve your seat.
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