Restraint (Duress)

Washington Wills

Even more than fraud, duress has been so commingled with undue influence that it only rarely emerges as a unique ground for a will contest. The essence of duress is whether the testator has the necessary free and voluntary intent to make a will, with the requisite free and voluntary intent being absent when the testator is the object of either physical compulsion or threat-induced fear. Duress is usually exercised through improper threats by a wrong-doer, which threats induce the testator, who has no reasonable alternative, to make or not make some testamentary disposition.

Duress differs from undue influence in that undue influence lacks the ingredients of physical compulsion or threat-induced fear and results, instead, from unfair persuasion of the testator. The issue of duress is not whether a brave or firm testator would have resisted the compulsion or been in fear from the threats, but whether the particular testator made the testamentary act or inaction through compulsion or such fear as to preclude the exercise of free will and judgment. Typical issues for consideration are the testator’s:

  • Age.
  • Sex.
  • Capacity.
  • Timidity.
  • Weakness.
  • Courage or cowardice.
  • The parties’ relationship.
  • The power and disposition of the wrongdoer.
  • Whether fear continued to operate beyond the period of the threats.
  • Whether disinterested advice was available to the testator.

Proof of due execution of a will raises the presumption of lack of duress in its execution or procurement. The burden then shifts to the contestant to prove the elements of duress by clear and convincing evidence.

Representative Washington cases:

  • Estate of Tate, 32 Wn.2d 252 (1948).
  • Estate of Palmer, 52 Wash. 644 (1909).