Legal Question in Wills and Trusts in Arizona

You have a case ... a losing one.

Undue influence is a case easily brought, frequently brought,and very rarely won.

If the judge were prejudiced against homosexuality, you'd have a slightly better chance, but even then, don't hold your breath.In the eyes of the law, homosexuality -- or to stretch your casein the direction you must be thinking, lust in general, [18 y.o. woman with 80 y.o. man] is not likely to be seen as undueinfluence [ unless she's his nurse and threatens to stop feeding him ... ].

I'm sorry. But that's just one attorney's opinion and I'm not even expert in your state's laws, so you shouldn't count on my word alone.

Factors for proving undue influence (in California)

First, the ex-wife should be sure that she'd receive something if the current will is found invalid for any reason. Generally, state law nullifies bequests to ex-spouses if the will leaving the bequest was made before the divorce. If the will was made after the divorce, and then another will was made leaving everything to the gay lover, then perhaps the ex-wife has standing. There are other situations where she may have standing as well.

Regarding undue influence, Arizona law is probably somewhat similar to California's, which requires "strong showing of proof by clear and convincing evidence." This means the proof had better be good. Factors to look for include the following: someone substituted his/her wishes for the deceased, the undue influence overpowered the mind and destroyed the volition of the deceased at the time the will was made, and the person who benefits from the will had a confidential relationship with the decedent and was active in getting the will made.

Also look for: the provisions of the will are unnatural, dispositions of the will vary from the decedent's expressed intentions, relations existing between the chief beneficiaries and the decedent afforded to the beneficiaries an opportunity to control the will provisions, the decedent's physical and mental condition was such as to permit a subversion of his or her freedom of will, and the chief beneficiaries under the will were active in getting the will made.

After all that, the ex-wife should see a local attorney about her chances--these cases are difficult to win, but they can be won if the facts are right. She should be prepared to discuss any concrete evidence she has of the above factors.

Gay person - Undue influence

I suppose that any person could claim undue influence, but I don't believe that an ex-spouse would have standing to do so. In other words, since the ex-spouse would have no claim to the assets, she would have no right to sue in court about them. In my state (N.C.), an ex-spouse is automatically cut out of the will of a former spouse, at least unless a contrary intent is shown.

If you are thinking about the inheritance of children of the former marriage, that may be an entirely different question. The children might be able to sue through their guardian.

Will challange--undue influence

Any relationship can be a basis for a claim of undue influence. That doesnot mean that it will succeed in court. The specific facts of the case willdetermine the result in court. Sexual orientation should not be a factor.