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Will Contests in California

San Jose Will Contest Attorney

Under ideal circumstances, a will makes the probate process simple and efficient by specifying exactly how the testator wants his or her estate to be distributed and who is entitled to receive a bequest. But not all circumstances are ideal, as for example when a caregiver or other new person in the testator’s life exerts undue influence to have a testator change his or her will disinheriting heirs and leaving everything to a caregiver or other new person in the testator’s life.  The family may realize that this person has taken unfair advantage of an enfeebled parent or other dependent adult.  There are legal grounds for objecting to such a Will. What follows is an overview of some of the most common grounds for challenging the validity of a will in California. For more information about will challenges, please contact a San Jose will contest attorney.

Lack of Valid Execution Under California Law

Each state has specific formalities that must be observed in order for a will to be considered legally valid. In California, a valid will must satisfy the following basic requirements under California Probate Code Section 6110:

  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. It must be signed by the witnesses

A challenger can call the validity of a will into question by showing that one or more of these formalities was not observed.

Lack of Capacity

Not everyone is entitled to make a will. California law requires that a testator be at least 18 years old and possess the capacity to make a will. “Capacity” generally means that the testator:

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

See Cal. Probate Code § 6100.5.  While this a fairly low bar, will challengers can often dispute the testator’s capacity by showing that he or she suffered from a mental defect — such as dementia or Alzheimers — that made it likely the testator had no understanding of what they were doing.  See, e.g., Cal. Probate Code § 811 (Deficits in mental functions affecting the capacity to execute a Will.)

Issues Related to Will Fraud

Will fraud — often part of a scheme of financial elder abuse of an elder testator— can occur in several ways. In some cases, the perpetrator may fraudulently induce the testator to make a will based on lies or misrepresentations. In others, the perpetrator may fraudulently amend an otherwise valid will without the testator’s knowledge. A perpetrator could also misrepresent the true nature and extent of the testator’s property, causing her to distribute it in a way that she would not have done absent the misrepresentation. For more examples of fraud, please contact a Santa Clara County will contest attorney.

Undue Influence in the Creation of the Will

Undue influence occurs when one individual — usually a person who exercises control over the testator and whom the testator trusts — overpowers the testator’s free will and causes the testator to distribute his assets in a manner that is contrary to his true wishes. It often occurs in situations where the testator is susceptible to manipulation and relies upon the expertise and care of the alleged influencer. Will challenges based on allegations of undue influence are intensely fact-specific and require a great deal of evidence to prove.

Contact a San Jose 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 whether irregularities are present. To get started, please contact a Santa Clara 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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