Contesting A Will During Probate
18/365 Probate (Photo credit: Theophilus Photography)
A will contest is a lawsuit in which an interested party, usually a beneficiary, asks the court to find that a will being presented for probate to the court is invalid. An interested party may also be a spouse, or a child of the deceased party, or any other person whose rights may be affected by the proceeding. To contest, one must have a direct monetary interest in the will.
Procedure for Will Contest
During probate, creditors and beneficiaries are given notice that a will is being presented to the court for probate. Once such notice is given, a beneficiary has a limited time to file formal written objections with the court. These objections take on the character of a lawsuit limited to the validity of the will presented. The objections are filed with the court and served upon all the other interested parties. Statutory procedures for the filing and serving of these documents must be observed.
Grounds for Contesting a Will
In California, and in most jurisdictions, the accepted grounds for contest are laid out in the appropriate probate and estate administration statutes. Grounds for contests may include improper execution, lack of testamentary intent, undue influence, fraud, duress, mistake, or revocation, usually by the execution of a later testamentary document (CA Probate Code Sec. 8252).
A will must be properly executed. It must be properly drafted, signed by the testator and witnessed (CA Probate Code Sec. 6110). Oral testimony of the witnesses and the drafting attorney are presented to the court in such cases.
Most of the other grounds lie in the claim that the deceased was unable to form the needed testamentary intent either because the deceased was coerced in some way, their mental will was overcome by a more dominant person, the will was executed by mistake, or the deceased, because of advanced age or ill health, lacked the mental capacity to form that intent. In these cases, the presentation of evidence of the testator’s mental and physical health may be important. Often family members and health care providers offer testimony regarding the decedent’s physical and mental state of mind at the time of the execution of the document being questioned.
Revocation, usually as a result of a later will, is also the subject of a formal objection filed with the court. During one’s lifetime, it is likely that a person will execute more than one will. In some cases, the deceased party will have executed several competing wills within their lifetime. Within the probate process, one will or perhaps more than one will, may be offered to the court for probate. The court must ascertain which will is valid and represents the true intentions of the deceased.
No Contest Clauses
Several jurisdictions, including California, have moved toward further limitation of what are known as no contest clauses (See CA Probate Code Sec 21310 et seq.) A no contest clause purports to disinherit any beneficiary who challenges a will. They are now largely unenforceable unless the beneficiary lacks sufficient probable cause to bring the contest. This often requires a beneficiary who is contemplating such an action, to obtain a legal consultation on the issue of sufficient probable cause prior to filing any formal objection.
For more information on this important issue, be sure to consult California Probate Code, Article 3.
Frank Milstead is an avid legal buff, and gets much of his inheritance information and tips from financial and law-related advice blogs.
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Category: Legal Problems
A friend of mine had the misfortune of having a relative who duped his dad into making a will that was prejudicial to their family’s interest. They are now contesting the validity of the will on the ground of fraud.
I not surprised the extent of people’s greed.