Signing a document
Signing a document

Mental incapacity and undue influence are two major grounds for Will contests, and Arizona laws offer specific provisions concerning both.

  • The “t

    estator” (i.e., the maker of the Will) lacked mental capacity or was not of sound mind when they signed the Will.

  • The testator was under the “undue influence” of another party at the time they created and signed the Will.

  • The Will does not faithfully reflect the testator’s wishes.

  • The Will was forged or not legally executed.

  • The Will has been superseded by a subsequent Will or governing document.

For the purpose of this article, we will focus on two of the most common premises for a will contest:

mental incapacity


undue influence

. (It is not uncommon for these issues to be raised in tandem, as some Will contests allege that the former made the testator susceptible to the latter.)

Mental Incapacity

Arizona law (A.R.S. § 14-2501) sets forth two prerequisites for making a will: The testator must be (1) age 18 or older and (2) of sound mind.

Regarding the second requirement, courts consider the testator’s mental capacity as of the time they signed their Will. The court will try to determine, in part, whether the testator:

  • understood that they were executing a Will and what that meant;

  • knew the nature and extent of their property; and

  • knew to whom they were bequeathing their property.

In general, Arizona law (

A.R.S. § 14-2712

) presumes that testamentary capacity – that the person was competent and of a sound mind – existed at the time the Will was signed. Courts also tend to view a Will as the “voice” of the testator; as that person can no longer otherwise express their wishes, courts tend to adhere fairly closely to the written will. As a consequence, the person challenging the Will


bears the legal burden of proving otherwise.

We emphasize “generally,” because Subsection F of the above-referenced statute provides important exceptions related to the second major topic of this article.

Undue Influence

Undue influence occurs when a third party coerces or otherwise exerts power over the testator in such a way that the Will does not reflect the testator’s wishes and/or improperly favors the person who exerted the power, so that the person exerting the power would get something he or she wanted. When determining whether a Will was the product of undue influence, Arizona courts consider an eight-factor test described in a 1996 Arizona Supreme Court decision,

In Re Estate of McCauley

. The analysis involved in such cases can get rather complex, but the basic outlines of most undue influence cases are pretty straightforward.

  • Example

    . Grace has two adult children: Monica, who lives near Grace and has frequent contact with her, and Brenda, who lives in another state. After Grace’s death, the value of the assets that Grace’s Will bequeaths to Monica are substantially greater than the assets left to Brenda. Brenda might allege that Grace’s Will favored Monica only because Monica selfishly exercised undue influence over Grace’s decision-making at the time Grace prepared and signed her Will.

While, as we mentioned above, the burden of proof is generally borne by the person alleging the undue influence, there are exceptions, depending on the facts of the situation.

Under Arizona law,

A.R.S. § 14-2712

(E), undue influence is presumed to have occurred in either of two situations:

  • A person who had a confidential relationship to the creator of the [Will] was active in procuring its creation and execution and is a principal beneficiary of the governing instrument.

  • The preparer of the [Will] … is a principal beneficiary of the governing instrument.

In the example of Monica and Brenda, if the court finds that (a) Monica had a “confidential relationship” with her mom; and (b) Monica had meaningful involvement in structuring the terms of her mom’s Will, undue influence by Monica would be presumed, pursuant to Subsection F of the above-referenced statute. The legal burden would then shift to Monica to show that, “by a preponderance of the evidence,” she

did not

exert undue influence.

Who Can Contest a Will, and When?

Before anyone can legally contest a Will, the Will must first be submitted to the court in a probate proceeding.

During the Will’s time in probate, and for up to three years following the death of the testator, an interested person can object to the Will’s validity.

It is important to note that not just anyone can contest a Will. The person initiating the contest must have legal standing as an “interested person” – e.g., the testator’s spouse, a child, or another person who is named in the Will. Interested persons can also include parties who can show that they should have been named in the Will or would have received an inheritance if the person had died intestate (i.e., without a will). Other players in a contested probate might include creditors or other parties that can show they have a valid claim against the estate.


While many of the issues discussed above have general application from state to state, the Arizona-specific references illustrate that, in a Will contest, location matters. Any interested person seeking to challenge the terms of a Will would be wise to seek experienced legal counsel, in the correct jurisdiction, to determine the validity of their objection.

More about:

Hoopes Adams & Scharber’s

estate controversy


See also:

Estate Controversy: Types and Causes