Contesting A Will

Only about 1 percent of all wills which pass through probate are contested. Of the small percentage which are contested, an even smaller percentage are successfully contested. Wills are typically seen by the courts as the “voice” of the person who wrote the will (testator) and since that person can no longer speak to his or her wishes, the courts tend to adhere fairly closely to the written will.

Spouses tend to be the most successful challengers, particularly in the state of California which is a community property state. Challenging a will successfully can render the will voided entirely or voided in part.

Wills which are voided entirely leave the estate as though no will ever existed, and the California probate court then distributes the property based on intestate laws of succession. Contesting a will can be a lengthy and often-complex process which can benefit greatly from the assistance of an estate planning attorney from WealthPLAN, PC.

Interested Persons

A will can only be challenged by certain persons. As an example, you would not be able to challenge your great-aunt’s will simply because you believe your cousin Julie should have gotten more of the estate. You cannot challenge a will because you believe you should have been left a bigger share of the estate.

Only “interested persons” are allowed to challenge a will – and only for a valid legal reason. An “interested person” would be a spouse, a child, a creditor or others who have a valid claim against the estate being administered.

Typically, intestate heirs, beneficiaries of a prior will and beneficiaries of a subsequent will are those who contest wills. A person with standing to challenge a will is either someone named as a beneficiary in the will or someone who is not a named beneficiary but would inherit or lose if the will were deemed invalid.

In short, you must either show you were named in the will, should have been named in the will, or that you would have received something of value if the person had died without a will.

Minors who want to challenge a will must wait until they have reached the age of majority. Wills may also have a “no contest” clause which forces a contesting beneficiary to make the decision to either take what the decedent left to them or risk losing everything.

In truth, however, no contest clauses are rarely enforceable, and anyone with standing can contest a will so long as there is a valid reason to do so. Contesting a will can be a daunting prospect, helped considerably by having an experienced estate planning attorney by your side. 

Grounds To Contest A Will

In the state of California, there are basically four legal grounds to challenge a will, however, each can be difficult to prove in its own way. Experts are likely to be necessary, witness declarations and testimony may need to be provided and the medical records of the deceased may need to be obtained.

The first grounds for contesting a will lies in whether testamentary capacity was present. This means the person making the will could have been incapacitated, therefore unable to make a will. Incapacitation would mean the person was of unsound mind or lacked the capacity to make a decision, particularly one as important as making a will.

The deficit must have significantly impaired the testator’s ability to understand and appreciate the consequences of his or her decisions and actions. The attorney who prepared the will could even be called as a witness should a question of the testator’s mental capacity come into question.

The second reason a will might be contested is when there is suspicion of undue influence during the preparation or execution of the will. Undue influence or coercion means the testator of the will did not have free will because another person was using manipulative techniques, usually to get something he or she wanted.

As an example, suppose one adult child has significantly greater access to the parent than the other children. That adult child could exploit the parent’s emotional vulnerability, coercing or manipulating the parent to leave a greater share of assets to them over the other siblings. The other siblings might then choose to contest the will after the parent’s death, claiming the will was changed or prepared under coercion or duress.

A will that is not properly signed could be contested. In the state of California, a will must be in writing, must be signed by the testator and must be signed by two disinterested, adult witnesses. A testator who is unable to sign his or her name may, under very specific circumstances, sign with an “X.” While a testator may instruct another person to sign the will for him or her, that witness may not then be counted as one of the two witnesses, and two adults must witness the signature.

Finally, a will may be contested when it is believed fraud occurred during the preparation of the will. Fraud means the testator was tricked into signing a will or included terms he or she did not intend as a result of trickery. As an example, the testator may have been asked to sign a document but told it was something other than a will.

As you can see, situations like this make the witnesses extremely important.

Burden Of Proof

The entire burden of proof regarding a California will contest is on the person contesting the will. If you believe the deceased person was incompetent at the time the will was prepared, then you must show evidence of that incompetency. This could come in the form of medical documentation, or witness testimony. If you are claiming coercion or fraud, you will likely be forced to rely on testimony from witnesses.

Time Limits For Contesting A Will

Under California law, a will is not a will until a probate court says it is, through the probate process. However, you cannot contest a will until a person (the executor, usually) offers the will to the court to be admitted into probate.

There is nothing to contest until a Petition for Probate is filed, but as soon as that petition is filed, you must object to the petition, and file the will contest lawsuit before the will is admitted to probate. As soon as you receive notice of a petition for probate of a will you believe should be contested, you will need to appear – and object – at the initial hearing.

You will then be given time to file a written objection in which you will state the legal grounds for your challenge. If a will has already been admitted to probate and deemed valid, you have one last opportunity to contest the will. You must file a petition with the court within 120 days from the date the probate is opened to ask the court to revoke its original order admitting the will.

Like any lawsuit, the amount of time the will contest will take once you have filed the appropriate paperwork is difficult to say. It could take months, a year, or even more before your will contest comes to an end, whether you win the contest or not. Contesting a will in San Jose – or other areas in California – can be difficult; however, a highly knowledgeable top estate planning attorney can help you through the process.

WealthPLAN, PC, Can Help You Contest A Will

The estate planning attorneys at WealthPLAN, PC, serve the greater San Jose area in California. We offer advanced and complex estate planning and litigation in your area, striving to create a personal experience for each and every client, and developing long-term relationships with our clients to meet their continuing needs.

While other estate planning firms pass off cases that are too complex, our staff members are always up to date on the latest estate planning laws in California and we are known among our peers as being experts in our field. If you are dealing with a will contest or you believe you are entitled to file a will contest, contact WealthPLAN, PC, today. Call 408-918-9030.