Although a lot of focus has been placed on "undue influence," some other grounds for challenging a Will include fraud, duress, menace, or mistake. The purpose of this post isn't to delve into particulars of each one but simply to make you aware of their existence. It's important to remember that under California Probate Code Section 6104, "[t]he execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence."

Mistakes in Wills vs. Trusts

Mistakes are treated differently depending on whether they are present in a Will or Trust document.

When there's a substantial mistake of fact or law, a trust may be rescinded. On the other hand, if a Will as a whole is executed with testamentary intent, it can't be overturned on the basis of mistake.

In case you're not sure what a "mistake" is in the estate planning context, here are some examples. A mistake could be one where you didn't realize the effect of what was written in the Will or Trust. Alternatively, a mistake could be more technical in the sense that you didn't know the proper steps required to properly sign your estate planning documents. Still, another form of mistake might simply be a typo that has a substantial unintended effect on the distribution of your assets.

That being said, an experienced litigator in the trust and estates field may leverage one or more of these methods of attacking a Will or Trust, depending on the facts presented.

Sometimes the obstacles to transferring property for estate planning purposes are outside of your control. The restrictions may be due to your marital status or status as a registered domestic partner, or the type of asset, such as an interest in a trust for which you may be beneficiary (i.e., a trust that was not created by you, but for your benefit).

However, restrictions may also be self-imposed, such as by agreements that you have with others not to transfer your property. A major hurdle in transferring property occurs when the transferring person loses the capacity to make the transfer.

Finally, even if you have the legal ability to make the transfer, you may nonetheless, wish to retain absolute control over property.

Lack of Legal Capability

A risk faced by some individuals is the possibility that someone will challenge the estate planning documents after you pass away. This often comes in the form of a challenge to the Will or other estate planning document that you've created.

You may have heard of this terminology before, but the challenges can range from the following:

1. Failure to follow the formalities required when signing the estate planning documents. 
2. Lack of capacity, mental or otherwise, to sign the estate planning documents.
3. The assertion that there was fraud, duress, or undue influence.

Risk Minimization

If you are clearly competent, and your lawyer is not in a position where there's a conflict of interest, others are not unduly influencing the decision-making or otherwise inappropriately pressuring you to make a decision, and the proper formalities of signing your estate planning documents are followed, the risk of someone challenging your estate plan is relatively low. 

Although estate planning may present challenges even after the documents are prepared and signed, the risk of having your transfer fail can be minimized by introducing an independent lawyer to draft the documents. He or she can be on the lookout for potential future causes of challenges to your estate plan and can help you to navigate away from them.

Estate planning, for most, has as its primary objective, the transfer of one's assets. On the surface, this appears simple, but a number of factors ranging from client fears, related costs, forgetting best practices when it comes to handling ones existing and newly acquired assets, as well as outsiders who seek to take advantage can all pose obstacles in the estate planning process.

Emotions

Estate planning can often feel like going to the doctor to do your annual check-up. Many people fear facing the inevitable and putting off the tasks required to do an estate plan is often the path of least resistance.

Fortunately, if you've contacted an estate planning lawyer, you at least recognize it's importance and are making a very good first step. A large portion of clients are motivated by family members such as a spouse or child to ensure that an appropriate plan has been put in place to protect them.

Others, particularly those of high net worth, are motivated by possible tax savings to be had as a result of estate planning; however, the present costs and potential loss of control as a result of those techniques often outweigh a client's willingness to pursue them.

It's also not uncommon to find the rare breed of clients who take a deep and sometimes all-consuming interest in estate planning.

Costs

A simple, yet very common hurdle, is simply the cost of doing estate planning. Many clients are scared away by the initial investment associated with setting up a basic estate plan. However, if the estate planning lawyer has done a good job, the cost of establishing a plan and maintaining it, should only amount to a fraction of the cost associated with not having an estate plan in place. Not to mention the additional stress that can be lifted from your family members as a result of your advanced planning, which can be priceless.

Maintenance

Even the best estate planning requires regular review. Actions such as purchasing additional assets like life insurance, the creation of new accounts, or purchasing of real estate are all situations that should be revealed to your estate planning lawyer.

Failure to regularly review your estate plan and assets, may cause you not to receive the full benefits of the plan that you established. Often, something as simple as acquiring new assets directly in the name of the trust can save you considerable sums and help avoid unintended consequences such as probate at the time of your death.

Unscrupulous Third Parties

A difficulty, particularly for the elderly, are individuals who take advantage of clients' weakened emotional, mental or physical states to extract their wealth. Although it can be difficult to detect and opportunities are limited, at least part of an estate planning lawyer's observations will include an assessment of whether a client is being unduly influenced or forced to make an estate plan that is contrary to what he or she would request had they not been pressured.

As you can see, a number of factors are at play that make estate planning challenging for clients. That's why having an actual firm or lawyer that you have a relationship with can be crucial since they will be "plugged in" to your life and have semi-regular communication with you.