My parent always said he/she loved my siblings and me the same and always treated us equally. Why did they suddenly change their mind and give everything to my sibling?
A parent has the unfettered right to decide who inherits his or her property and how it will be distributed at death, but that decision must be entirely voluntary.
What happens when your elderly parent signs a new will because someone expressly or impliedly threatens him? What if your sibling, who provides primary care and with whom your elderly parent may live or depend upon to maintain their quality of life, demands that they be given a greater share of your parent’s estate – or there will be consequences? Or a caregiver demands they be added to the will as a condition of continuing assistance? Or another family member threatens consequences like committing the parent to a nursing home unless the testator changes an estate plan?
These types of circumstances raise an issue separate from testamentary capacity or undue influence – actual duress now enters the picture.
Under Maryland law, duress can provide a basis for challenging the validity of a will independent of the testator’s capacity or undue influence on him. Undue influence involves manipulation, while duress involves direct psychological or physical threats used to force or induce a testator to sign a will or make an estate plan including particular provisions.
What Is Duress in a Maryland Will Contest?
In the will context, the central question is whether a purported testamentary decision represented the testator’s free choice or instead resulted from direct or implied threats directed at the testator. Here is the difference. Your parent decides to leave a greater portion of their estate, say the family house, to one sibling as a voluntary decision because he/she has taken care of the parent for the last ten years. Undue influence is where a person gradually manipulates or dominates your elderly parent/testator until the resulting estate plan no longer reflects the testator’s independent judgment. Duress is not as subtle. It involves, for example, a demand and threat such as “Change your will and leave me the house, or I will abandon you and you will have nobody to care for you.”
The last scenario raises a different evidentiary issue because the alleged wrongdoing is a threat intended to produce the testamentary act. In Maryland, if someone threatens a testator to force that person to sign a will or include specific terms, the resulting will may be invalid.
Duress Is Different from Lack of Testamentary Capacity
This distinction between duress and lack of testamentary capacity can become critically important in probate litigation. A person subjected to duress might nevertheless be mentally competent. In fact, to understand the express or implied threat, the testator must be able to comprehend it and its consequences. Your parent may very well know that the document they are being asked to sign is a will; they may be fully aware of the property they own and who their intended beneficiaries are. They may understand exactly what the new will provides, except that they, as the testator, did not freely choose those provisions.
A testamentary-incapacity challenge focuses upon whether a mental impairment prevented the testator from possessing the necessary competence when the will was executed. Thus, evidence demonstrating that a decedent was mentally alert does not necessarily eliminate a potential duress claim.
Duress Is Also Different from Undue Influence
Duress and undue influence appear similar because both call into question whether a will genuinely represents the testator’s wishes.
But the factual focus of duress is different. Undue influence generally concerns manipulation or pressure sufficiently powerful to overcome the testator’s free will. (See my prior blog post “7 Red Flags of Undue Influence in a Maryland Will Contest.”) Duress, on the other hand, focuses on express or implied threats, often subtle but understandable, used to compel the testamentary decision.
What Evidence May Help Demonstrate Duress?
Because duress concerns coercion, any investigation should focus intensely on what occurred before and around execution of the disputed will. For example, what were the text messages, emails and other communications between the testator and the alleged coercing individual? The inquiry is not limited to just an overt statement saying, in substance, “change your will or else,” but what communications occurred, when they occurred, and how they relate to execution of the new estate plan. Were there statements made by the testator to relatives, friends, doctors, caregivers, accountants, or other people that they were frightened or being threatened? What did the witnesses to the will signing observe or hear? Did other individuals who interacted with the testator during the relevant period possess evidence about threats, fear, isolation, dependency, or changes in the testator’s conduct?
Suppose your parent consistently divided their estate equally among their several children for twenty years. Shortly before death, they execute a new will leaving virtually everything to one child. Such dramatic changes to a long-standing estate plan may also suggest duress.
Some potential duress cases involve elderly or seriously ill individuals who depend heavily upon another person for transportation, housing, medication, food, medical appointments, finances, or everyday personal assistance. Someone may use that dependency as leverage to compel a testamentary disposition. For example, a caregiver may threaten to withdraw essential living assistance unless the testator changes their will, circumstances which present a substantially different factual issue from facts showing merely that the caregiver received a generous inheritance. The first involves an alleged threat connected to the testamentary decision. The second establishes only an arguably suspicious result and requires considerably more investigation before any conclusion can be drawn.
How Is a Maryland Will Challenged for Duress?
In Maryland, a challenge to a will is brought through a caveat proceeding. A petition is filed with the appropriate Register of Wills. Maryland Rule 6-431 governs what must be included in the petition. Timing is important because Maryland Estates & Trusts § 5-207 generally permits a verified petition to caveat only until six months following the first appointment of a personal representative under a will accepted for probate. Thus, prompt investigation and action are required.
The Bottom Line
A Maryland will that does not necessarily express the testator’s true wishes is not valid merely because the testator understood what they were signing. Their decision must also always be fully voluntary. Where credible facts arising from text messages, emails, witness testimony, prior estate-planning documents, the drafting attorney’s file, and statements of the testator point to threats that caused a person to execute a will, change beneficiaries, or include particular testamentary provisions, duress should be considered as a potential basis for challenging the instrument.
