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:
- The will must be in writing
- 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
- The signing of the will must be witnessed by at least two other people
- 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.
Our San Mateo Will Contest Attorney Discusses the Issues Facing Seniors That Can Lead to Will Challenges
There are many reasons why wills are contested, but many boil down to some common issues many seniors face.
The Senior May Have Demonstrated Mental Shortcomings
The legal standard for determining testamentary capacity is relatively low. Cal. Probate Code § 6100.5 notes that generally, a person lacks testamentary capacity if “the individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will” or if individual suffers from mental disorders or hallucinations and the like. Caregivers and others may manipulate a senior after a stroke, for example, when he or she really lacks testamentary capacity and that can be the basis for challenging a caregiver or other stranger’s attempt to probate a will that disinherits a senior’s family.
The Senior May Have Drafted the Will Herself
Many seniors attempt to draft their wills themselves, either because they do not want to pay for an attorney or because they think an attorney is unnecessary. Or perhaps the senior believes she does not have time to go through all of the formalities. A self-made will is known as a “holographic will,” and these types of wills generally are valid in California so long as the signature and material portions are in the testator’s handwriting and that the testator had the requisite mental capacity. While holographic wills are valid, it is more difficult to authenticate them than it is for standard wills drafted by an attorney. As such, a senior who prepares a holographic will may be opening herself up to a will challenge for lack of proper execution. Caregivers and others may also attempt to offer holographic wills and other writings for probate. Sometimes these documents may be complete forgeries.
The Senior Makes Mistakes in His Will
It is very easy to make mistakes in a will, especially for seniors with substantial assets or who are unsure of everything they own and/or its location. For example, a senior may leave “my house on Elm Street” to a beneficiary when it turns out that the house is actually on Mulberry Street. Or the senior may be mistaken as to an opinion, for example, by leaving very little to a son who he believed to be an alcoholic but who had not, in fact, had a drink in 10 years. Such mistakes are fertile ground for will challenges, and you should contact a San Mateo will contest attorney if you believe an error has occurred.
The Senior Placed Her Trust in the Wrong Person
Seniors often rely upon others for help with some or all of the activities of daily living, but our San Mateo will contest attorney knows that putting their trust in the wrong person can have dire consequences for their wills and ultimate estate planning goals. Unscrupulous caregivers can often take advantage of mentally fragile seniors by inducing them to make dispositions to favor the caregiver that they otherwise would not have made. Or, perhaps, the caregiver could make covert edits to the senior’s will to his or her own benefit. Placing trust in the wrong person can often result in challenges to the senior’s will based on undue influence or fraud.
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.