Contesting a Will in California

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b2ap3_thumbnail_shutterstock_1025098705.jpgIt is already so difficult to lose a loved one. When, after the grieving, remembrances, and respects paid, the loved one’s will does not seem to square with his or her stated intentions and wishes with regard to the probate estate, the sense of loss is joined by one of grievance and injustice. While some wills and trusts, though surprising in their dispensation of assets, are perfectly valid, others may be rightly contested on legal grounds for lacking validity. The purpose of this article is to set out the reasons which may render a will invalid upon formal contest in California.


Seven Reasons to Contest a Will in California


In California, as in every state, it is not enough to merely speak to another person of one’s intentions concerning the distribution of assets at death. Certain legal formalities must be complied with, including the writing of the will and the signing of its testator (the person to whom the will belongs and of whose estate it pertains to). While the presence of two valid witnesses at the signing of the will by its testator will protect against dubious will contests, an authentic handwritten (“holographic”) will signed by its testator may also be deemed valid. So, then, the first reasons for a will to be found invalid in California are if it was either not written or not signed by its testator.


The second reason is what is what is known as “revocation.” Revocation is often at issue when a testator has drafted multiples wills at multiple dates, or amended a will with other written instruments intended to alter portions of a will (“partial revocation”). Here, a timeline must be constructed, and legal expertise utilized in determining which documents are current and governing, and which documents have been rendered null and void through the process of revocation.


Five other bases for a will to be contested as invalid in California are:


  • Lack of testamentary intent or capacity;
  • Undue influence;
  • Fraud;
  • Duress; and
  • Mistake.


When There Exists Reason to Contest a Will in California


Lack of testamentary intent or capacity, and also mistake, go to state of mind (e.g. decreased mental state due to an illness such as Alzheimer’s or dementia) or actions (e.g. an error in the drafting of the will) of the testator. Undue influence, fraud, and duress, on the other hand, go the actions and intentions of the other people (typically those seeking to benefit from the will). To consider contesting a will in California, rely on an experienced Fremont wills and trusts attorney.



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