When creating a will, it is essential to take all the proper steps to ensure it is legally enforceable. After your death, it is possible that someone close to you may try to say that your will is not valid or that there is something wrong about it.
This may lead to a will contest, which is when a person asks the court to validate your will. The court must then investigate every aspect of the document and its creation to ensure it meets all legal requirements.
If the court decides that your will is not valid, it can void parts of it or the whole thing. This will leave the court in charge of distributing your assets and handling your estate according to succession laws.
At Huber Law Group, A.P.C., we understand that sometimes a will contest is something that must happen. There are plenty of situations where unscrupulous people may try to steal what rightful belong to heirs by influencing the will creation process. You may find yourself having to contest the will of a loved one. If you are in this situation, you need a Sacramento will contests lawyer who has experience in estate law to assist you with the legal aspects of proving your claim and seeing justice done.
What Is a Will Contest?
This is a question that isn’t always easy to answer. Generally speaking, a Will Contest in California is an action to determine that a Will is unenforceable under California law.
The goal is generally to change the document or to influence the results. For example, if your father left you out of his will, you may wish to contest it in an effort to gain an inheritance from your father’s estate.
However, it is not enough to simply feel there is an issue or to not be happy with what a will says. You have to have proof there is a legal issue with the document or there was a legal issue with its creation. It is up to you to shoulder the burden of proof and show the court the will is unenforceable.
What Makes a Will Unenforceable?
There are a number of reasons a Will may be unenforceable. First, if the Will was not properly executed, it may not be enforceable. California Probate Code § 6100, et seq., sets for the requirements for a validly executed Will.
To be legal, a will must be in writing. The person creating the will must sign and date it in his or her own handwriting. Also, two witnesses who are not named in the will, must sign the document. There is a holographic will, which is a handwritten will, recognized by California law. This type of will only need to be written, signed and dated in the handwriting of the person creating it.
In addition, to create a will, you must be at least 18 years old. You also must have the mental capacity to understand what a will is and how it works. You need to be of a clear mind and know the effects of this document once you create it. Furthermore, you need to write of your own free will without anyone else influencing what you say and the decisions you make.
More commonly, Will contests are brought on the basis that the testator was unduly influenced into signing a Will, the Will was procured by fraud, or the testator lacked “testamentary capacity” to execute the Will.
Testamentary capacity and fraud are self-explanatory, but undue influence can often be confusing. It is a legal term that even courts struggle with in some situations. However, the generally accepted meaning is that it occurs when someone did something to take away the free will of a person when creating the will.
For example, a new wife may exert influence over her husband so that he leaves everything to her instead of dividing it among her and his children. She may coerce him or trick him in some way to get what she wants.
If a claimant succeeds in proving that the testator lacked the capacity to execute a Will, or was fraudulently induced into executing the Will, the Will is likely to be determined to be unenforceable.
Will a No Contest Clause Eliminate My Inheritance if I Contest the Will?
California Probate Code §21311 provides as follows:
A no contest clause shall only be enforced against the following types of contests:
A direct contest that is brought without probable cause.
A pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application.
The filing of a creditor’s claim or prosecution of an action based on it. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application.
For the purposes of this section, probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.
Most Will contests are “direct contests”, meaning they are brought on the grounds that the Will is invalid due to: 1) forgery, 2) lack of proper execution, 3) menace, duress, fraud or undue influence, 4) revocation of the will, or 5) disqualification of a beneficiary.
In these cases, it is very important that the party seeking to contest the Will carefully analyze their evidence and objectively evaluate whether they have “probable cause” to contest the Will.
If a Court determines that “probable cause” for the contest did not exist, and the Will contains a “no contest provision”, the contesting party may be completely excluded from any distribution under the Will.
How Do I Contest a Will?
A will contest in California requires two things. First, you must show the court you have the right to contest. This means that you are an heir, or you are someone who has a financial stake in the outcome of a will.
You cannot contest a will of someone when you have no financial connection. For example, if you are a friend of someone and you think that person was a victim of undue influence, you cannot contest his or her will unless you would benefit from it.
Second, you need a valid reason to contest. Again, you can’t just be unhappy with what the document said or what you did or did not receive as an heir. You need a legally sound reason. You also need proof since the burden of proof almost always is on the person bringing the objection.
If you meet the criteria, you can bring your objection before the court during probate. This requires filing a petition with the court. Our attorney can assist you with this process and with ensuring you have the grounds to file a will contest.
If you think you may need to contest a will or have any questions about the process, then please contact a lawyer from Huber Law Group, A.P.C. today at (916) 525-7980.