Challenging a will is very complex and requires a probate attorney’s representation. The process is time-consuming, costly, and emotionally draining, so contesting a will is only recommended when you are absolutely sure your situation warrants all that is required to contest a will in California.
Wills are legally binding documents. And, because the will doesn’t go into effect until the testator (person creating the will) has died, probate courts are exceptionally conservative regarding changing the original testator’s (now decedent) stated intentions.
Contesting a Will in California: Timing, Grounds, & Process
The first step in contesting a will is to hire a probate litigation attorney to review your case and provide recommendations for moving forward. From there, they will determine whether you have grounds to challenge the will and are acting within the legal time frame, and will facilitate the process to ensure your case moves forward.
Timing is essential
Probate courts hold strict time limits. Once the probate process begins, the public has 120 days to contest or challenge the will. After that time, courts will rarely honor a challenge.
Once you file the paperwork to contest the will and all relevant parties have been notified (more on that below), the probate process freezes. In most cases, probate disputes are settled within six to 12 months. In rare cases, with more complex estate plans, it can take longer.
Grounds for challenging a will
There are five different grounds, or reasons, a will can be contested in court. In each case, the court demands clear and convincing evidence to change the will or estate plans, which can be difficult to obtain.
Lack of mental capacity
Being of sound mind enough to make decisions that align with your wishes is the first set of criteria for creating a legal will, trust, and other estate plans. This is why it’s so essential to create a will while you are still mentally healthy and able to do so or immediately after receiving an early diagnosis of Alzheimer’s, dementia, or other health conditions that can cause dementia down the road. In the latter case, you may want your physician or neurologist to be part of the witnessing process so there is clear evidence they feel you are still of sound mind to make those types of decisions.
Evidence that suggests you were not of sound mind or lacked decision-making faculties increases the risk of your will being contested or challenged.
Undue influence of another (or others)
This second ground, being under the undue influence of another person (or persons), is also a legitimate reason to contest a will. This means that someone coerced or pressured the person to create their will. In some cases, this could be related to elder abuse. However, it can also just be the actions of a very selfish, bad-intentioned person who wants things to be done their way.
Undue influence is most often related to a relationship with an imbalance of power, and the manipulator is typically a new spouse, spendthrift child, caregiver, or other close family member. Undue influence from another may also be connected to the testator’s diminishing mental capacity, so those two things may go hand in hand.
Fraudulent activity
In some cases, it may come to light that the will put through probate was fraudulent and was pushed through probate in the hopes it would move through without notice and within the 120-day timeframe. It can also mean that a will was created by a fraudster with a forced signature by the testator, which makes the will null and void.
This can be a very hard one to prove, so expert representation is critical to ensure you have access to highly qualified and skilled analysts who can help to demonstrate the will is fraudulent.
Improper execution
This can be one of the most heartbreaking ways to have your intentions successfully challenged by another person, and is also a powerful example of why DIY estate planning puts you at risk. As with any legal document, there are specific legal requirements and protocols. If the will, trust, or estate plans aren’t executed to the letter of the law, they are at risk of being challenged or contested.
Some of the most common “mistakes” leading to improper execution include not having the document(s) signed by witnesses, using an improper witness (a minor, someone without adequate mental capacity, a person with a financial interest in the outcome, someone who wasn’t physically present when the testator signed the will, etc.). So, even if you consider your will to be exactly as you intended, it can be contested if the witnesses (or lack thereof) are called into question.
The wrong will was entered into probate
It’s not uncommon for people to revisit and revise estate plans regularly. In fact, we recommend this to ensure a client’s estate plans reflect their current wishes and implement the latest strategic tax benefits. However, if they don’t let others know the will has been revised, an outdated will may find its way to probate.
Estate plans should be as private as you want them to be, and there’s no reason to share information with heirs and beneficiaries if that makes you uncomfortable. However, trustees/executors (or a single, trusted family member/friend) should always know when there’s been a change and have access to the most current will/estate plan to prevent an old will from having to be contested.
In most cases, the most recent and properly executed will is the one the probate court will honor – unless other factors lead them to use intestate succession laws instead.
Process required to contest a will
First, you must qualify to contest the will or estate plan legally. That means a person must have a direct financial interest in the will/estate plan. In most cases, the only people or parties who can challenge a will are:
- Beneficiaries named in the will (or who were named in a former will).
- Any heirs that fall under California’s intestate succession laws.
- Creditors (lenders, credit card companies, etc.) who are owed money by the decedent.
If you have a legal right to contest the will:
- Hire a probate attorney. The probate process for contesting a will is exceptionally complicated without a sound understanding of California probate law. We highly recommend consulting with a probate attorney before pursuing it independently.
- Serve legal notice to all involved parties. You must also legally serve any parties interested in the will, including trustees, all heirs, and beneficiaries.
- Start gathering evidence. This is called the discovery process and is your chance to gather all of the firm, convincing evidence available to convince the court to vary from the will’s instructions. This can be very challenging, especially when you’re trying to access things like HIPAA-protected medical records or professional clinical testimony pertaining to mental capacity.
- Mediation/trial. Whenever possible, we highly recommend using mediation over a courtroom trial. Mediation can be far less time, money, and energy consuming when compared with the expenses and emotional fatigue inherent in the trial scenario.
- Court decision. After all of the information is gathered and presented, a probate judge will provide the final decision, which will be to uphold the current will, honor a more recent will, amend or adjust the final inheritances/bequeaths, or scrap the will altogether and move forward with distributions based on intestate succession laws.
Tseng Law Firm Can Help You Learn More About Contesting A Will in California
Are you interested in challenging a will, or are you involved in a case where a will is or might be challenged? Schedule a consultation with Tseng Law Firm, and we’ll tell you everything you want to know. We’ll also provide you with best practice steps for moving forward.