When a loved one passes away, the family members become your strength and give you the courage to endure the pain. However, sometimes, the same family member(s) may become a source of grief –especially when it comes to the probate process. You might feel the need to contest a Will for many reasons. Perhaps, the will does not reflect the deceased person’s intent; or you were to get a bigger share then you have received. However, it is important to know that you can challenge a Will on certain legal grounds.
Reasons to Contest a Will
A testator is a person who has made a will, and that will is the testator’s personal property. Nobody has the right to view this will unless they have permission from the testator. After the death of the testator, the chosen executor files the probate case, and the will becomes a public record. For the courts, a will is the voice of the deceased person.
You cannot challenge a will on baseless grounds; for instance, challenging a will just because you don’t like the terms, is a waste of time. You must have substantial legal reasons to contest a will. In the case of a successful claim, the court may invalidate the last will and testament.
The legal grounds for contesting a will include the following.
1. The Will Does Not Meet Legal Formalities
If you feel that the last will and testament do not meet the legal formalities, you can challenge the will. Essentially, legal formality refers to how the will was signed. Perhaps, the testator did not sign it properly.
It’s a general assumption that a will signed in an estate attorney’s office meets the proper legal formalities. However, that’s not always the case. Every state has its own legal framework on how to sign a last will and testament.
For instance, California Probate law requires the testator to sign the will in the presence of at least two witnesses. It is important that both witnesses are present at the same time as they also have to sign the will. Additionally, the law requires the witnesses to sign an affidavit acknowledging the testator’s mental capacity.
2. The Testator Lacked the Mental Capacity to Create a Will
One of the most substantial reasons to contest a Will is the lack of “testamentary capacity.” It refers to a person’s ability to understand the will at the time of creation and its consequences. Specifically, a person is considered to have the testamentary capacity when they understand:
- The value and extent of their assets
- Who should be the logical heirs/beneficiaries of their estate?
- What a will means and the legal implications of signing a will
- The relation of these elements to the probate process, i.e., distribution of the property.
After consulting a will contest lawyer, you can challenge the will if the testator had dementia, senility, or insanity. Also, if the testator was intoxicated and lacked the capacity to create a will, you can contest the will. However, these may be difficult to prove and you should consult a qualified probate attorney to understand your rights under the law.
3. Undue Influence
As people age, they become weak mentally and physically. It is comparatively easier to manipulate a weaker person than someone who is mentally and physically fit. If you feel a beneficiary has taken advantage of the testator’s vulnerability for creating their will, you can challenge it.
“Undue influence” refers to the lack of free will to make a decision and do as the manipulator wants. The influencer may have exerted pressure on the testator to make them a beneficiary or leave a big share for them. However, to make your case strong, you have to provide substantial evidence.
Coming up with arguments like the alleged influencer threatened the testator, verbally abused him/her, or nagged at them do not count. You have to prove that the alleged influencer met the testator’s attorney for provisions in the will, paid for the will, and isolated the testator from their family.
4. The Will is Written under Duress
The Legal dictionary defines duress as exerting “unlawful pressure” on a person to act against his/her will. Duress includes the use of force, threat, psychological torture/brainwashing, false imprisonment, or any other form of violence.
If the testator signs a will due to any of the above-stated reasons, a will becomes invalid. So, if you are convinced that the testator created or signed a will under duress, you can contest the will. But, you have to provide evidence.
5. The Will is Fraudulent
Fraud is one of the grounds for contesting a will. If you are sure that the testator was tricked into signing the will, you can challenge it in California Probate court. For example:
Your father has reduced mental capacity and his brother gave him some documents for signing, telling him that it’s for a business contract or power of attorney. It turns out that the document that your father signed was a false will – created by your uncle. Thus, your uncle procured the will by fraudulent means.
In such cases, even if the testator reviews the document, he/she will be unable to understand the legal implications of signing that will.
When a relative or family friend has potentially engaged in a fraudulent activity which may deny you of your legitimate property rights, know you have options. For consultation on reasons to contest a will, as well as the proper procedures, contact a probate litigation attorney at the Legacy Lawyers