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Friday, February 5, 2016

Contesting a Will in California

Contesting a will takes place when someone believes that a will was not drawn up correctly or that the person didn’t mean to set it up the way that he or she did.  Contesting a will is not easy, but may sometimes be necessary to preserve the proper distribution of an estate. California law recognizes the following people as having standing to contest a will; “An heir, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” The Code states the meaning of interested person may vary and will be determined according to the particular purpose of the proceeding and the particular matter involved. If you have standing, you may contest a will.

Contesting a Will in California

Under California case law the general rule is that someone who wants to contest a will must have a financial interest own the deceased person’s estate that may be impaired or defeated by probating of the will according to its terms.  Basically, the Court wants to know if you would have gotten more money from the estate if not for the will that you want to contest.

Some examples of people with standing include:

  • ▪An heir at law is a person who would have inherited any portion of the estate, if decedent had died without a will (intestate).
  • ▪A predetermined heir includes the decedent’s children, spouse, or registered domestic partner who wasn’t mentioned or provided for in the will or other testamentary instrument.
  • ▪Someone who was a beneficiary under an earlier will and who  now get less or nothing because of a later will.
  • ▪Someone who was a beneficiary under later will but got less or nothing at all because of an earlier will that was offered for probate.
  • ▪A secured creditor of decedent’s heir when the heir has been disinherited by the will.
  • ▪An executor under an earlier will that was admitted to probate who must then defend it against a later will.

Grounds for Contesting A Will

If you have standing to contest the will you need a good reason that you believe that the will is incorrect. The following grounds or reasons are acceptable by the Court;

Revocation: Evidence that the decedent had revoked the will that has been offered for probate.

Lack of Capacity: Evidence that the decedent was incapable of forming the intent necessary to prepare a will. If the person can prove that the person making the will was suffering from mental incapacity to the degree that he or she did not know that they were making a will and/or did not know the nature or extent of his assets, nor the identity of their family, one may be able to establish that the creator lacked the requisite mental capacity to make a will. Evidence in this regard may include medical records, witnesses who had interaction with the testator and, possibly, the opinion of a forensic psychiatrist.

Fraud: If a person can prove that the testator signed the will document without knowing or realizing that it was actually a will, or that he wot she was given misinformation that caused him to sign the will in its present form or to change the distribution plan of a prior will, one may be able to establish that he was fraudulently influenced.

Misrepresentation: Evidence that someone made misrepresentations to the decedent that influenced the preparation of the will.

Menace: Evidence that someone threatened the decedent into preparing the will that you wish to contest.

Duress: Evidence that the decedent would not have prepared the will if the decedent had not been unlawful confinement or detention.

Undue Influence:  If a person believes that another person applied undue pressure to the testator to change the distribution made in a prior will and/or to disinherit someone who would be the natural object of his bounty, that circumstance may perhaps show undue influence, which is often another basis to challenge a will.

Mistake: Evidence that the decedent made a mistake in how he or she prepared his or her will that results in you not getting what the decedent intended you to receive.

Lack of Due Execution: Evidence that there are some problems with how the will was executed, such as a failure to have the will properly witnessed or the will was not signed by the decedent. If a person can show that the will was not properly executed according to state law, this may furnish another basis to contest a will. Example: the testator did not sign in the presence of the required number of disinterested witnesses, or that the actual signing was not properly witnessed.

Forgery: Evidence that the will offered for probate was a forged will.

If you believe that you have unfairly lost your inheritance, contact us to discuss your options. Please be aware that time is of the essence in these types of matters. California law permits you to file a contest with the court either before or after a will is admitted to probate, but there are strict time limitations for filing a will contest. Failing to file a will contest in time will be fatal to your will contest.

 

 

 

 

 

 

 





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