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Will Contests and Probate Disputes

Why You Need a Santa Clara County Will Contest Attorney for Probate Disputes in San Jose and More

No one likes to think about what will happen when they die. Nonetheless, proper estate planning can mean the difference between order and chaos when that day eventually comes. A well-executed will or trust can help ensure that your assets are distributed the way you want and avoid unpleasant family feuds. However, even with a solid estate plan, disputes can arise and put that plan in danger. An experienced attorney can help settle disputes and safeguard your estate plan to the greatest extent possible.

For more information about any of the topics discussed herein, please contact a San Jose will contest attorney.

Is a San Jose Will Contest Attorney Really Necessary?

It is not strictly necessary to involve an attorney in your estate planning. So long as you follow the requirements for executing a will or establishing a trust (outlined below), you may be able to accomplish your goals and get by without one. However, estate planning is a sensitive subject for many families, requiring the testator or settlor to make difficult decisions about how much each of her heirs will receive (if they are to receive at all). These decisions can provoke jealousy among the heirs or beneficiaries and cause them to attempt to challenge the validity of the will or trust. Unfortunately, legal action of this nature can create significant rifts among family members from which it can be very difficult or impossible to recover. In a worst-case-scenario situation, these disputes could lead to the will being invalidated and the testator’s estate passing through the laws of intestate succession.  While hiring a will contest attorney to handle the creation of your estate planning instruments does not entirely eliminate the risk of future disputes, it can significantly reduce it.

Common Will Contests and Trust Disputes in Santa Clara County

There are an almost limitless number and variety of disputes that can arise during the probate process, but the grounds for challenging a will or a trust usually are based on one or more of the grounds below. 

Lack of Capacity

As a threshold matter, all individuals who wish to execute a will or trust must have the mental capacity to do so. This means that the testator or settlor must be at least 18 years old and have the ability to:

  1. Know the nature and extent of his or her property,
  2. Know the natural objects of the property,
  3. Know the disposition the testamentary instrument is making, and
  4. Know how all of these elements fit together to form a coherent plan

The bar for establishing testamentary capacity is fairly low. However, the older an individual is, the easier it is for his heirs to challenge his mental capacity, especially if he suffers from dementia or another form of mental disability.

Lack of Valid Execution

California law sets specific requirements for the creation of wills and trusts. In order for a will to be valid in California, it must satisfy the following basic requirements:

  1. It must be in writing
  2. It must be signed by the testator or on behalf of the testator by a person in the testator’s presence and at his or her direction
  3. The signing of the will must be witnessed by at least two other people
  4. The will must be signed by the witnesses

A trust in California is created when:

  1. The settlor manifests an intention to create a trust
  2. There is property to be held in the trust (known as the trust “res”)
  3. There is a beneficiary (unless the trust is a charitable trust)

The settlor can “manifest an intention” to create a trust in one of the following ways:

  • Declaring that he or she holds the property as trustee
  • Transferring the property during his or her lifetime to another person to hold as trustee
  • Transferring the property through his or her will to another person to hold as trustee upon his or her death
  • Exercising a power of appointment to another person as trustee
  • Enforcing a promise to create a trust

Although these requirements seem simple and straightforward at first glance, many issues can arise that can spell trouble for estate plans. For example, what happens if one of the witnesses who signed the will was also a beneficiary? What if the property that is to form the trust res cannot be properly identified? What if there are no witnesses, but the will is written entirely in the testator’s handwriting? If any of these issues arise, one or more of the decedent’s heirs may move to invalidate the will due to lack of valid execution.


Fraud occurs when an individual deliberately deceives someone one else, normally with the intention of pursuing financial gain. Probate fraud can result in the testator’s estate being distributed differently than how he or she intended based on a misrepresentation by someone else. A few signs of probate fraud include:

  • The will or trust disposes of the property in an unusual or unexpected way
  • The will or trust significantly benefits an individual who would not normally be expected to benefit to such an extent
  • The will or trust excludes certain heirs or beneficiaries who normally would be expected to benefit
  • The testator or settlor makes a sudden change to the will or trust
  • The will or trust distributes assets to organizations in which the testator or settlor was not known to be active or with which the testator or settlor was unfamiliar

In the context of wills, fraud can occur either by inducement or by execution. Fraud in the inducement occurs when a testator executes a will that contains one or more terms that are based on lies, misinformation, or trickery. This could happen, for example, when one heir convinces the testator that another heir has betrayed the testator in some way and is not deserving of the bequest the testator had intended to make to the other heir. Fraud in the execution occurs when an individual misrepresents to the testator the nature of the document the testator is signing. In some cases, the perpetrator will forge an entire will and represent it to the testator as his or her own, while in others, the perpetrator may take a more surgical approach and edit existing provisions or add new provisions without the testator’s knowledge. A will or trust that is procured by fraud may be found to be wholly or partially invalid by a probate court.

Undue Influence

Undue influence occurs when an individual overpowers the free will of the testator or settlor to such an extent that the influencer’s will is substituted for the testator or settlor’s will. This kind of influence can cause the testator or settlor to distribute her assets in a manner that is contrary to her true wishes. It most often arises when the testator or settlor and the influencer share a “confidential relationship,” which is one that is characterized by a high degree of trust and in which one party is dependent on or subject to the control of another party. These types of relationships provide fertile ground for the party with superior skills or knowledge to take advantage of the weaker party. Many of the signs of probate fraud can also indicate undue influence. For more information about uncovering potential fraud or undue influence, please contact a Santa Clara County will contest attorney.


When heirs or beneficiaries feel that they should have received more than they did, they will often argue that the will or trust contained a mistake and must be amended or partially invalidated. These arguments usually are long-shots, however. As long as a will was validly executed by a testator who possessed the requisite mental capacity, courts generally will refuse to correct alleged mistakes. A major exception to this general rule arises when the moving party can show that the mistake was due to a lack of capacity or fraud.

Our Firm Can Also Provide You with a Santa Clara County Trust Dispute Lawyer

The trustee of a trust manages and holds title to the trust’s assets, which means that he or she has a great deal of power and control over them. As such, the law imposes a fiduciary duty upon trusties — i.e., a duty to administer the trust solely in the interests of the beneficiaries. Specifically, this includes the duties to:

  • Follow the terms of the trust instrument
  • Deal impartially with the beneficiaries
  • Refrain from commingling the trust’s assets with other assets
  • Refrain from self-dealing or otherwise using the trust’s assets for his or her own benefit
  • Avoid conflicts of interest
  • Make the property productive under the circumstances and in furtherance of the trust’s purpose

Beneficiaries who are dissatisfied with the trustee’s performance of his duties may move to have the trustee replaced on the grounds that he violated his fiduciary duty to the trust’s beneficiaries. For more detailed information about the duties of a trustee, please contact a Santa Clara County trust dispute lawyer.

What Constitutes “Undue Influence?”

Generally, undue influence occurs where the perpetrator overwhelms or overpowers the testator such that the testator’s intentions are essentially replaced by the perpetrator’s. It is particularly common among the elderly, but undue influence can often be difficult to detect. Below are a few red flags that indicate that undue influence may be occurring:

  • The testator is elderly and lives alone
  • The testator has a diagnosis of dementia
  • The testator is dependent upon others for essential activities of everyday living
  • The influencer takes an unusual amount of control of the testator’s finances
  • The influencer shields the testator from family and friends
  • The influencer speaks for the testator during the will-drafting process
  • The testators new will substantially deviate from previous wills
  • The testator’s will makes unusual dispositions of property
  • The testator’s will makes a gift to a caregiver or person with whom the testator is in a fiduciary relationship

These are just a handful of the many red flags that undue influence is occurring. If you suspect that a loved one is being unduly influenced, please contact a Santa Clara will contest attorney who can help you evaluate your situation.

Can a Santa Clara Will Contest Attorney Help if I Suspect that the Will Was Executed Under Duress?

A will is valid only insofar as the testator executed it voluntarily and where there is evidence that the will accurately reflect the testator’s intentions. Duress in the context of wills and trusts occurs when the perpetrator threatens the testator’s safety, reputation, family, or finances to force the testator to do something he or she would not have done otherwise. As such, a will executed under duress is invalid because it is considered to be executed involuntarily.

Are Fraud, Duress, and Undue Influence Forms of Elder Abuse?

There are many forms of elder abuse. However, one of the most common — financial elder abuse — occurs where the perpetrator exploits the victim financially for their own personal gain. While financial elder abuse is most commonly understood to involve financial exploitation that occurs during the victim’s lifetime — such as caregiver fraud, Medicaid and Medicare fraud, reverse mortgage fraud, and annuity fraud — any activity that exploits money from an elderly person (including his or her estate) falls under the umbrella of such abuse.

Can Dementia Give Rise to a Lack of Capacity Challenge?

A diagnosis of dementia is one of the most common bases for lack of capacity will challenges. So, yes, it can give rise to a will contest. However, a dementia diagnosis alone is not enough to prove a lack of capacity. The challenger must show that the testator’s dementia affected his or her ability to:

  • Know the nature and extent of his or her property,
  • Know the natural objects of the property,
  • Know the disposition the testamentary instrument is making, and
  • Know how all of these elements fit together to form a coherent plan

These determinations are intensely fact-specific and vary case by case. If dementia is at issue in your situation, please contact a Santa Clara will contest attorney.

Speak to a Santa Clara County Will Contest Attorney

If you are considering setting up an estate plan, it would be in your and your beneficiaries’ best interests to seek the counsel of an experienced estate planning attorney. To get started, contact a Santa Clara will contest attorney at Evans Law Firm by filling out our online form or calling us at 415-441-8669.

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