When a spouse passes away there are also several practical and legal matters that must be addressed shortly thereafter. One of those legalities involves locating and reading the decedent’s Last Will and Testament. If you have concerns about the Will after you read it, can you do anything about it? Let’s explore if and when a spouse can contest a Will in California.
A decedent’s estate is required to go through the legal process known as probate. If a Will is located, the Will is submitted to the appropriate probate court in order to initiate that process. The probate process serves several functions, including allowing creditors the opportunity to file claims against the estate and eventually transferring estate assets to beneficiaries and/or heirs. One of the first tasks of the probate court, however, is authenticating the decedent’s Will. This is when challenges to the Will must be filed. A Will contest can be filed before a petition to probate the estate has been filed or prior to a hearing on the petition if it has already been filed. If the Executor has already filed the petition and the hearing has already occurred wherein the court accepted the Will for probate, a contestant only has 120 days from the date of the hearing to contest the Will.
Basic Requirements for Contesting a Will
The first requirement for contesting a Will is that you must have “standing,” which refers to your legal right to bring a lawsuit. To have “standing” you must be an “interested person.” This typically includes legal heirs of the estate, a beneficiary under the current Will along with beneficiaries from a previous Will, or even creditors of the estate or decedent. As the spouse of the decedent, you would certainly have standing to move forward.
In addition, you must allege grounds on which the Will could legally be declared invalid. You cannot pursue a Will contest based solely on the fact that you are unhappy with the inheritance (or lack of inheritance) left to you in your spouse’s Will. In California, the following grounds may be used to invalidate a Will:
- Lack of testamentary intent or capacity – alleging that the decedent did not have the required mental state when the Will was made.
- Undue influence – claiming that there was an improper influence, usually from another person, at the time the Will was drafted and that affected the terms/drafting of the Will.
- Fraud –claiming that the Will was made because of fraud on the decedent or that fraud was used to create the Will.
- Duress – alleging that the decedent was unlawfully confined or detained when making the will.
- Mistake –claiming a mistake when the Will was made caused it to be invalid, or that a mistake is preventing you from receiving something from the estate to which you are legally entitled.
- Revocation –claiming that the Will was voided or cancelled out by a later Will or similar document.
If You Contest the Will, What Happens Next?
As long as you meet the preliminary requirements for filing a Will contest (standing, timing, grounds) the litigation that follows is similar in nature to any other civil litigation. Both sides will engage in discovery and likely some negotiation to try and reach an out-of-court settlement. One important aspect of a Will contest, however, is that the probate of the estate effectively stops while the challenge to the Will is litigated because the outcome determines how the estate assets are distributed. If you are successful, the Will submitted to probate is declared invalid, and unless another valid Will exists the estate is distributed using the California intestate succession laws. As a surviving spouse, you would have a right to inherit a considerable portion (or potentially all) of the estate under the intestate succession laws. If you are unsuccessful, the Will is authenticated, and the terms of that Will are used to distribute the estate assets.
Please download our FREE estate planning checklist. If you have additional questions or concerns about how to minimize the chance of having a contest of a Trust or Will in California, contact us by calling (916)-437-3500 or by filling out our online contact form. Please note that our firm does not currently handle contested matters.