Most of the time a Will goes through probate without a problem. However, it’s possible to contest a Will or challenge its validity if you feel it wasn’t written correctly. Consider carefully all the items listed below, but consult an attorney before you take any action on your own.
Check for No Contest Clauses
Look for any no contest clauses in the Will. Some Wills include provisions that disinherit beneficiaries if they attempt to challenge a Will. If such a provision exists, you will have to decide if it is worth the risk to challenge the Will, as a failure results in not collecting anything from the estate. Such clauses are potential landmines and one should seriously consult qualified legal advice regarding it.
Who are You? You Must Have Standing
Ensure that you have standing to challenge the Will. The only people who can challenge a Will are those who are specifically named in the Will, were named in a previous Will or would have received a share of the estate under intestacy laws (California laws that determine how an estate is divided when someone dies without a Will). Individuals in the last category tend to be spouses or children.
Do you possess Valid Reasons for Contesting a Will?
Identify the legal reason you have for contesting the Will. You cannot contest a Will merely because you do not like it; California requires that you have a specific legal reason. The most common reasons are lack of capacity (Californians must be at least 18-years-old and of sound mind to create a Will), duress (if someone coerced the individual to make a Will), menace (if someone threatened to injure or blackmail the individual unless she made a Will), fraud, undue influence (someone took advantage of a relationship with the deceased to encourage her to make a Will) and mistake.
Have You Checked the Testamentary Capacity and Formalities?
Some Will contests are based on allegations that the deceased person, or testator, wasn’t “of sound mind” or testamentary capacity to make the decisions in the Will according to state laws. In general, Wills must be signed and witnessed by at least two people and everyone must be over 18 years of age. These grounds depend on the laws in the state where the Will was created, signed and filed for probate. Cautious background checking with qualified legal advice is suggested.
Was there Actual Incidence of Fraud, Undue Influence or Mistake?
A Will, in full or in part, can be found to be void if it was made under undue influence (i.e. duress), fraud or mistake. This means that all of or part of the Will won’t be enforced if any of the above occurs.
Anything that hampers the ability to make a Will by the “testator” to their wishes shouldn’t be accepted in a court of law. If a Will is voided, the estate will be distributed under the state’s intestate laws. If only part of the Will is void then the share from the voided distribution is dumped into the residuary estate and dispersed according to the Will.
Undue influence could be present when a trusted person influences the testator to make a Will that benefits him. The key is whose overall intent was put into the Will: the creator or the beneficiary.
A full Will or any part of it may be voided if it was created under fraudulent means. This could happen if the person making the Will is presented with information that made them change their mind about whom to leave their property to. If Carol tells her grandfather that her brother, Jim, was a thief to get him to change his Will, even though Jim really wasn’t a thief, she may have committed fraud.
A mistake can be found when it is proven that the testator didn’t intend to include certain provisions in a Will or if the testator signed the wrong document. When the mistake involves a signature, a court may revise a Will that was signed by mistake, such as when it’s clear that a husband and wife intended to make reciprocal Wills but signed the wrong original documents. On the other hand, if the testator made a Will under a mistaken belief of fact (i.e. was mistaken in his or her belief regarding certain facts), that mistake generally would not invalidate the Will.
Accusations do not hold up without proper documentation and evidence. Consult an attorney for assistance.
Was there Tortious Interference with an Inheritance?
Instead of contesting a Will or claiming its invalid for any reason, there’s another way to obstruct with an estate. Your attorney can file a lawsuit against the person who’s receiving the property you think should be yours when the creator of the Will is still alive.
This tortious interference requires you to prove that the defendant (person you’re suing) interfered with the creation of the Will for any reason. If you win your case, not only will you be able to inherit from the Will, you may recover attorney fees and any other costs you paid associated with the suit as additional punishment.
Is everything in order? Get an Attorney to File and then Attend the Hearing.
You may wish to file an objection with the probate court that is handling the individual’s estate. Your objection must state your reasons and explain why you have standing on the issue. The form of the objection will vary depending on your jurisdiction within California, but your attorney should be able to provide you with documents to fill out in order to move forward.
Attend the hearing that is assigned to you. At the hearing you and your lawyer have the burden to prove why the Will is invalid. Any evidence must be presented (including previous Wills if any exist) in order to convince the probate judge that the Will in question should not be used to distribute the estate.