How to Contest a Will

attorney and elder couple looking at laptopIn order to contest a will under California law, the contestant must be considered an interested party. An interested party may include the decedent’s children, spouse, creditors, beneficiaries named in the will, those with a claim against the estate, or those whose property rights will be impacted by the will.

Contestants commonly consist of beneficiaries that are not receiving everything they anticipated from the will, people not included in the will at all, or those who did not receive anything in the will, but would have gotten something under California intestate law.

Contesting a will challenges the validity of the will and/or whether explicit terms were actually the intention of the testator.

Common Reasons Why Wills Are Contested

The following are the most common reasons for contesting a will:

  • Questions about testamentary capacity
  • Will was improperly executed
  • Undue influence

Questioning the Testator's Mental Capacity During Will Creation

In order to make a valid will, it is required that the testator has the adequate mental capacity to comprehend the nature of what he or she is doing. Additionally, the testator should recognize his or her relationships with all potential beneficiaries and the character of his or her property.

California Probate Code § 810 presumes that everyone has the capacity to make decisions and to be responsible for them. This makes the contestant’s burden of proof much more difficult, even in circumstances where the testator suffered from dementia.

The mental capacity standard is a moderately low one. It is important to note that testamentary capacity is also necessary when the will is being modified or revoked.

Improper Execution of the Will

The formation of a valid will involves following a specific procedure. According to California Probate Code § 6110, the will must be in writing, the testator is required to sign it, and there must be at least two witnesses.

The witnesses are not allowed to have any interest in the will. Not complying with any of the above requirements could be grounds to invalidate the will in its entirety.

Will Was Created With Undue Influence

The testator is supposed to create the will without any external influences or pressure. Sadly, people often try to exploit the sick or elderly when they are most susceptible to outside pressures. For example, a caregiver deceives the testator into adding a certain provision, altering the will, or revoking it.

Hiring an experienced lawyer can help prevent any possible issues regarding undue influence. This would allow the testator to talk to a lawyer about his or her desires alone without the opinions of any beneficiaries.

What Happens if the Will Contest is Successful?

The most challenging part of contesting a will is that the primary witness is deceased. Contestants usually have to show circumstantial evidence, supplementary witnesses, or demonstrate other factors to prove their cases.

If the will is successfully contested, the court can choose to void some provisions or the will’s entirety. If the court concurs that the will is not valid in its entirety and no other will exists, the decedent’s assets would be distributed through a succession plan.

Getting Help with Your Will

A skilled and experienced Walnut Creek estate planning attorney can assist you in creating a valid will. In order to protect your loved ones and assets, we at Feldman Law Group can help anticipate any possible will contests and create a plan to prevent them. Call today at (925) 208-4543 or contact us online to discuss your options in more depth.


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