Will Contests

In California, a will contest challenges the validity of the document in its entirety, or attempts to set aside some of its terms.  Will contests are not favored by the courts because the legislative intent is to honor the written instruction of  the decedent (“testator”).

Many times, a son or daughter was disinherited because they remained estranged from the family for decades.  The only recent contact with family members is at the funeral, and their real interest is to find out how much money they may have inherited.  These types of cases illustrate why the courts are reluctant to entertain them.

However, there are many legitimate grounds for challenging a will, and the law provides a remedy when required to carry out the testator’s true wishes. 

Undue influence is one of the grounds upon which a successful challenge can be made.   This means taking advantage of another’s weaker state of mind.  Any number of “bad apples” (children are usually the suspects) can unduly influence another person into unwittingly adding or deleting beneficiaries.   A bright red flag goes up when a person is made a beneficiary, yet only knew the testator for a few months.  Caregivers make up a large percentage of these wrongdoers.

A caregiver may have recently been hired to take care of mom (widow) and spends 24 hours a day at the home.  Mom’s children have always had her love and support, but live out of state and cannot stay in physical contact.

The caregiver begins to plant the seed in mom’s mind that everyone is out to get her, and the caregiver is her only true friend and protector.  Before long, mom is taken to a shady lawyer who prepares a new will, leaving the bulk of mom’s estate to the caregiver.  The children find out only after mom has passed away and the new will is admitted to probate.

Coercion, manipulation and duress.  These three elements share common features: they are different forms of undue influence.  They involve using threats or intimidation to badger the testator’s real desires into submission, and to substitute their own wants instead. 

There are other elements (grounds) as well for bringing a successful petition to contest a will.  Fraud.  This intentional act occurs when the abuser misrepresents a material fact to the testator.  S/he must have relied upon the lie, created the (misguided) instructions in the will, and caused damage to someone.

 One BIG caveat:  Most living trusts contain a clause that states that any beneficiary who challenges any of the terms of the trust will be automatically disinherited.  This is called a “no contest” clause.

In California, the law regarding “no contest” clauses, and challenges to them, has significantly changed (January 1, 2010). 

Previously, a disgruntled beneficiary had the right to seek prior approval from the court to determine whether a proposed challenge to a trust would be considered a violation of the “no contest” clause.  If the court ruled in favor of the beneficiary’s request, then the “no contest” clause would not be violated.  If the court ruled against the beneficiary’s request, then that beneficiary would simply back off – knowing that if s/he did file a challenge to the trust, then they would have violated the “no contest” clause and be automatically disinherited.

This was known as a “safe harbor” petition.  The new law repeals the “safe harbor” petition and allows, under certain circumstances, for the filing of a petition to challenge the terms of a trust, so long as the court ultimately determines that the petitioner (beneficiary) had “probable cause” to believe that the facts warranted a reasonable person into concluding that the trusts terms were obtained through mental incapacity, undue influence, or a variety of other improper means.

Will contests, like trust contests, are often difficult to prove because sufficient evidence must be produced to show that at or near the time of the will’s signing, the testator lacked sufficient testamentary capacity to understand the consequences of signing the document.  Testamentary capacity is a low threshold.  A testator simply needs to have an understanding of what assets make up their estate, and who the natural objects of their bounty would be.

The evidence to prove lack of capacity can come from a variety of sources, most notably medical records and statements from close family members and friends.

If you believe that a person you know was the victim of one or more of these types of undue influences, then please call to discuss whether a valid will contest case exists.