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Will Contests

Grounds for Contesting a Will

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.

What Makes a Will Unenforcable?

There are a number of a 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.

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.

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:

  1. A no contest clause shall only be enforced against the following types of contests:
    1. A direct contest that is brought without probable cause.
    2. 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.
    3. 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.
  2. 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.

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