A will contest is when one challenges the terms of a will after the maker of the will has passed away.
There are select few reasons to contest a will, such as fraud, improper execution of the will, and the deceased’s lack of capacity to make major decisions at the time the will was signed.
It is worth noting that contesting a will is a very rare occurrence; the vast majority of wills pass through the probate process normally. The rarity of will contests makes it even more crucial to hire a skilled family law attorney who can help you through the process.
- Lack of Due Execution
“Lack of due execution” means the will was not signed according to state laws. California law requires that two witnesses are present at the time of the signing and that the two witnesses understand they are signing a will. The will must be in writing and must be signed by the testator (the maker of the will) to be valid. If the testator is unable to sign his or her own will, it must either be signed in his or her name by someone else at the testator’s direction or signed by a conservator.While these requirements seem elementary, especially if the will was prepared by a qualified estate lawyer, there are plenty of cases in which wills are not properly executed. If any of the above requirements were not met, you could challenge the will on the grounds of lack of due execution. - Fraud
If the testator is tricked into signing a will, fraud has taken place. If the testator was in sound mind at the time of the signing, this is usually done by pretending the will is another document. For example, someone intending to defraud the testator could ask him or her to sign a property deed in the presence of two witnesses; however, instead of a deed, the testator unknowingly signs his or her own will.Proving fraud is particularly difficult because the deceased person cannot testify as to what document he or she signed. In these cases, an attorney will typically consult the two witnesses involved. (If witnesses were not involved, the will can be contested under “lack of due execution.”) The witnesses should be asked what they were witness to and what they believed they were signing at the time. If the witnesses believed they were serving as witness to another document, you could have grounds to challenge the will on grounds of fraud. If the witnesses’ testimony don’t match or add up, there could be grounds for a “lack of due execution” challenge because witnesses are required to understand that they are signing a will. - Lack of Capacity
At the time the will is signed, the testator must be of sound enough mind to understand the proceedings. In order to have testamentary capacity (i.e. the ability to make decisions relating to the estate or will), the testator must understand the following:- the legal effect of signing a will
- the value and nature of his or her assets
- who should logically inherit his or her assets
- that he or she is signing a will
California Probate Code Section 811 dictates what does and does not qualify as lack of capacity to make or sign a will. In order to prove the testator was of unsound mind when the will was signed, you must prove that the deceased lacked one of the listed mental functions AND provide evidence of a correlation between the deficit and the will signing itself. Any of the following mental states can contribute to a claim of lack of capacity:
- Inability to reason using abstract concepts
- Inability to understand and appreciate quantities
- Inability to plan, organize, and carry out actions in one’s own rational self-interest
- Inability to reason logically
- Inability to communicate with others, either verbally or otherwise
- Poor short- and long-term memory, including immediate recall
- Severely disorganized thinking
- Hallucinations
- Delusions
It is important to note that a diagnosis of a mental condition is not enough to prove lack of testamentary capacity. You must prove that the condition causes significant inability to reason or communicate, and then prove that this inability applies to the signing of the will.
- Undue Influence
If someone in a position of trust manipulates the testator to sign a will, you can contest the will on the grounds of “undue influence.” Most often, this involves an adult child or caregiver who manipulates the testator into leaving him or her a significant amount of property. In these cases, family members are often unaware of last-minute changes made to the will until after the testator has passed away. Proving undue influence typically requires the testimony of many people who knew the decedent well, including family members, doctors, caregivers, advisors, and lawyers. These interested parties are able to shed light on the relationship between the decedent and the person allegedly exerting undue influence.
In order to contest a will, California law requires you to be an “interested party.” In other words, you must have a financial interest that would be impaired or defeated if the will was allowed to stand (or you stand to benefit financially from setting aside the will). Under California law, an “interested party” can include the decedent’s:
- Spouse
- Registered domestic partner
- Children
- Heirs
- Creditors
- Beneficiaries under the current will or any previous will
If you are interested in contesting a will, it is important to note the legal time limits. After passing away, a person’s estate must go through the probate process, in which the probate court collects the decedent’s assets, pays necessary taxes, and distributes property to heirs. Probate begins when the executor of the estate files a petition with the court, at which time the court will set a date for the probate hearing.
Will contests can be filed either before or after the probate hearing. If a petition has already been filed, you have until the date of the hearing to file a petition to revoke will probate. If you want to contest the will after the hearing, you have 120 days from the hearing date to file the petition.
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