Probate Litigation

Probate Litigation in Utah

If not managed and pursued appropriately, litigation can be costly, time-consuming, and disruptive. It usually requires a tremendous commitment of time and resources. We understand the benefits and pitfalls of litigation and can respond to your needs by providing a skilled team who will work with you toward your desired goal. We understand that probate litigation often involves families, and we understand the need to balance compassion with an aggressive litigation approach. A will contest may ensue when a party has an issue with how an estate is being probated. to be able to execute a legal challenge to the validity of an estate plan, you have to allege:

  1. Undue Influence is when a person in power psychologically manipulates and persuades the testator to sign a will and eliminates the free will and judgment of the testator. Undue Influence means that the testators mind was so controlled by persuasion, pressure, or coercion by the actions of another that they were unable to act voluntarily.  Undue influence in it’s purest form is when the will becomes the document of the person providing the influence and the influence reaches the point it is no longer considered a matter of the testator’s free will and the testators desires. At the time the document is executed if the testator does not have mental capacity, is subject to undue influence, or the document is forged it will not be a valid Utah will.
  2. Lack of Testamentary Capacity is when a party feels that the testator could not fully understand the contents of their will because of the testator’s mental state. Testamentary capacity in more detail for a Utah will is the ability to understand the extent and nature of one’s property generally, the relationships of those who would be the natural heirs of the testator’s estate, and being able to understand the practical effect of a will. Testamentary capacity is one of the more frequent challenges for wills in Utah and typically happens when a testator was very sick, elderly, or heavily medicated. Capacity will be judged at the time of the execution of the will or testamentary trust. It is possible for someone that may typically lack capacity but they may have a lucid moment where they are with it and have testamentary capacity legally.
  3. Power of Attorney Abuse – A power of attorney document provides a secondary party the capacity to make decisions on behalf of the “principal”. Abuse of the power that is given is when the secondary party makes inappropriate or imprudent decisions for the estate. The potential for fraud exists in every power of attorney arrangement. Fraud exists through self dealing, embezzlement, or unlawful gifting. In some situations, a power of attorney holder will significantly deplete an estate and leave the heirs of the principal with little or no inheritance. Powers of attorney may also be abused by changing beneficiary designations on life insurance or annuities, and opening bank accounts with joint title or pay on death provisions in favor of the person holding the power of attorney.
  4. Conflict of Interest – will contests due to perceived conflicts of interest can occur when the attorney documenting the testator’s estate is faced with dueling loyalty to clients. Usually this involves loyalty to the testator as well as a named beneficiary. Anyone with a legal interest in the estate has standing to challenge the personal representative under the removal statute. However, there will need to be sufficient admissible evidence to show more than the person has an interest in the estate that is adverse or conflicting with it. These interests must also have the potential to interfere with the administration of the estate as a whole. The burden of proof therefore requires not only a showing of the interest at issue, but evidence of how this interest might clash with the job of administering the decedent’s estate.

Probate Litigation Attorney in Salt Lake City

Every will contest case has essential elements that need to be proved. The specific type of evidence needed in every case depends upon the grounds for each contest, but there are categories that are useful in almost every situation. You need witnesses who can provide facts concerning the execution of the will, medical records that show relevant medical conditions of the testator, contracts and other legal documents executed by testator, prior wills, codicils, and powers of attorney executed by the testator, correspondence of the testator, including electronic communications, and financial records that indicate unusual gifts to people influential to the testator.


Garner Law will represent anyone whose interests under a will or trust are in dispute, and especially if anyone is concerned about the way in which a vulnerable or incompetent family member’s estate is being managed. We handle estates of all sizes and will work with you and your family to advocate your concerns and positions.