Contesting a Will

In California, contesting a will means filing suit to invalidate the document. A common reason for doing so is that heirs believe the will does not represent the actual wishes of the decedent at the time it was signed. To make a claim, litigants require standing, and this immediately brings two complications.

The first step is determining whether you have standing to challenge the will. Third parties, who are not involved in the probate process as either an heir or a potential heir, have no standing – the will doesn’t affect them. A spouse or child, who would benefit if the will is invalidated, automatically has standing.

If the will is thrown out, the intestacy laws of California come into play as if there was never a will at all. Under the intestacy laws, a spouse or child will be a beneficiary – this gives them standing. Others may also have standing to challenge a will, and your attorney can advise you about your particular circumstances.

The second complication arises when a will has a “no contest” clause. These clauses disinherit beneficiaries who challenge the will. Your attorney will help you evaluate the risks of losing a suit when a no contest clause is part of a will.

Some common grounds for contesting a will are:

  • Testamentary capacity or mental competence. When a will is drawn up, the person creating it has to be “of sound mind.” This prevents fraud. The testator must be mentally competent so that they can understand the nature of what they are doing, the extent of the property to be distributed and with sufficient memory to know who their living descendants are, along with other significant relationships.
  • Mental disorders affect testamentary capacity if they cause hallucinations, delusions or corrupt the memory. An attorney challenging the will has to show the type of mental illness affected the will itself, not simply that the deceased has a disorder. Alzheimer’s or dementias are common allegations made when challenging mental capacity. In California, the law assumes the testator is competent and your attorney will have to prove otherwise to win the case.
  • Fraud – the will is fake or altered in some manner. Perhaps a signature is in question or the document has been changed to benefit one heir over another. Fraudulent alterations can be adding something or removing something. Mistakes in the will can also be a target for litigation, even when fraud is not alleged.
  • Menace is alleged when someone is pressured to make a will under duress. This can be blackmail, threat or any other pressure that, if not present, would have resulted in a different will.
  • Undue influence is alleged when it appears a beneficiary directed the will to their own benefit. This sometimes arises when a caregiver leverages their relationship to get a new will drawn up that favors them.

It is important to get qualified legal advice quickly if you intend to contest a will. In California, there is a set time limit for challenges and no challenge may be made after the time limit expires. Your attorney will evaluate the documents, investigate the circumstances, and advise you on whether to proceed and under which grounds you are most likely to succeed. This article has only touched some general principles involved. Only a licensed attorney can advise you on the specifics of your circumstances. To speak with a licesned California Probate dispute and litigation attorney contact Steven Simrin.