In California, will contests and trust disputes are quite common. When someone who believes they are entitled to share in an estate or a family member disagrees with how estate property is being distributed, the likely result is probate litigation. Litigation begins with a petition and that means someone who has an interest in the estate brings their disagreement to the court to resolve. Litigation is sometimes difficult to avoid despite using even the best estate planning techniques.
There are essentially four legal grounds for challenging the validity of a will. Each of these bases can be difficult to prove because medical records need to be obtained, witnesses’ declarations/testimony needs to be provided and experts may need to be hired for their input. Contesting a will can also be a very expensive court process, yet that fact does not often dissuade everyone. The legal bases to challenge a will include the following: (1) there is a question about testamentary capacity, (2) there is a suspicion of undue influence in preparing or executing the will, (3) it was not signed properly, and (4) the testator was fraudulently induced into creating the will or including certain provisions.
A lack of testamentary capacity can invalidate a will. Under California law, an incapacitated person is defined as follows:
[a] person is of unsound mind or lacks the capacity to make a decision or do a certain act when there is a deficit in at least one of the following mental functions and the deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the act or decision in question.
Sometimes the attorney who prepared the will may be called as a witness on the question of his or her client’s mental capacity.
Contested wills can be the result of a suspicion of undue influence or coercion used to coerce a testator into either creating the will or including certain provisions in the will. This may come up when the person who benefits by certain provisions in the will had greater access to the testator such as a child living with the testator or the testator’s significant other who was frequently with the testator. Undue influence may sometimes be simply that someone exploited the testator’s emotional vulnerability. Proving undue influence or coercion can be difficult.
A will can be contested if there are problems with the signatures. In California, a will must be in writing, signed by the testator and two adult disinterested witnesses. If the testator cannot physically sign his name he may sign by using an “X” under very tight rules. Or the testator can instruct someone to sign it for him/her. That person, however, may not be counted as one of the two required witnesses. Each witness must either observe the testator sign the will or be told by the testator that the signature on the will is his/hers. The witness must also understand that the document is the testator’s will, and then sign the will in the presence of the testator and the other witness. It is easy to run afoul of these rules and thereby have an invalid will.
A will procured by fraud can be contested when there is evidence that the testator may have been tricked into signing the will or defrauded into including terms in the will that the testator did not intend. For instance, a testator may be given a document that is represented to them as something entirely different, when in fact it is a will. The difficulty with proving fraud is that the primary witness, the testator, is no longer available to testify. This is where the other witnesses to the will become extremely important.