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Challenging a Will

San Mateo County Will Contest Attorney

A foundational principle of probate law is that, when a person has a will, the probate court should follow the terms of the will as closely as possible because the will is a manifestation of the testator’s wishes as to how his or her property should be distributed. The law thus imposes strict requirements on the creation and execution of wills to ensure their validity. See, e.g., Cal. Probate Code §§ 6100 et seq.  Any allegation that the will does not manifest the testator’s true intentions — for example, that it is a product of undue influence, fraud or duress— calls the will’s validity into question and can form the basis of a will contest. Cal. Probate Code § 6104.   Below are some of the most common legal grounds for challenging a will in California. For more information, please contact a San Mateo County will contest attorney. 

Contesting a Will Due to Lack of Capacity in California

As a threshold issue, the law requires that the person making the will possess the adequate mental capacity to do so. Cal. Probate Code § 6100.5. Testamentary capacity generally refers to the testator’s ability to know:

  • The nature and extent of his or her property
  • The natural objects of his or her bounty
  • The disposition the will is making
  • How all of these elements combine to form a coherent plan

See Cal. Probate Code § 6100.5.  Questions concerning the testator’s capacity come up frequently when the testator suffers from a mental illness, such as Alzheimer’s or dementia.

Lack of Valid Execution

There are four basic requirements that must be met under California Probate Code Section 6110 for a will to be considered valid in California:

  1. The will must be in writing
  2. The will 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 witnesses to the signing must also sign the will

Wills that do not comply with the above requirements (known as “holographic wills”) may still be considered valid if the material portions of the will are in the testator’s handwriting.  Cal. Probate Code § 6111.

Undue Influence Over the Testator

Undue influence refers to a situation in which the testator’s free will was overpowered or manipulated by another person so as to cause the testator to dispose of his property in a way that he would not have done absent the influence.  Undue influence is a grounds for overturning a Will under Probate Code Section 6104.  It often arises in cases where the testator and the alleged influencer have a relationship in which the testator trusts in and relies on the alleged influencer. California law also presumes that undue influence is present if a will makes a donative transfer to certain categories of individuals, such as the person who drafted the will or the testator’s care custodian. See, e.g., Cal. Probate Code §§ 21360 et seq.

Fraud and/or Forgery of the Will

A fraudulent will is one the testator executes in reliance upon another individual’s lies or material misrepresentations. A forged will is one that is made or modified without the testator’s knowledge. Fraudulent and forged wills are invalid because, by definition, they do not represent the true intentions of the testator.

Contact a San Mateo County Will Contest Attorney

If you are considering challenging the validity of a will, you should consider speaking to an attorney who can help you determine the strength of your case. To get started, please contact a San Mateo County will contest attorney at the Evans Law Firm by filling out our online form or calling us at 415-441-8669.

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