Contesting a Will

Your brother submitted a will to the probate court, in which he receives the vast majority of your late widower father’s estate. Based on conversations with your father, you know he had a will in which everything was split equally between his three children. What do you do now?

A will contest is a proceeding which challenges the validity and legitimacy of a document alleged to be the decedent’s will or codicil. It is a regulated procedure which delineates who may challenge the will, the grounds on which the challenge may be brought, and the time limits within which the challenge may be brought.

Any “interested person” may challenge a will. This includes heirs (which includes certain family members), devisees, beneficiaries, creditors, persons having priority for appointment as representative/executor, and certain other people.

Grounds for challenging a will in probate court include lack of testamentary capacity, undue influence, duress, fraud, mistake and lack of due execution. After a will has been admitted to probate, a challenger generally has 120 days to object to the will.

In addition, most wills contain a “no-contest” clause (also known as an in terrorem clause), which effectively void any inheritance an unsuccessful will challenger would otherwise have inherited. What constitutes a “contest” for purposes of these clauses is itself a tricky issue – the clause itself doesn’t necessarily preclude all contests involving the decedent’s estate.

Will contests don’t arise just within the family; too often, seniors living alone are preyed upon by less-than scrupulous neighbors or acquaintances. One area of particular concern in California is that of caregivers and caretakers of elderly individuals (called “care custodians” under the relevant statutes).   Late-in-life will revisions or amendments which work in favor of a caregiver are viewed with suspicion in California, and are subject to voiding if (among other reasons) there was no Certificate of Independent Review by an attorney, stating the decedent made the gift freely and without undue influence or duress. Inter vivos (during life) gifts may also be reversed for the same reasons.

Potential will contests should be carefully considered and alternatives to probate litigation should be assessed. However, the challenger to a will should not delay taking action, lest they lose the right to do so.

Did your recently deceased great aunt Sally, a mother-less widower who lives at least an hour away from any family, leave all of her worldly belongings to a 40 year old neighbor whom none of the family had heard of until the will reading?


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