You may not be that surprised that contesting a will does actually occur. Regardless of your wish to avoid family disputes about who should get which property, those types of disagreements are sometimes inevitable. However, you can take certain measures to keep your family from contesting your will.
Common reasons for contesting a will
There are basically four different reasons most people decide on contesting a will. These four reasons include the fact that the will was not properly drafted or signed, there may have been a lack of testamentary capacity, there is a suspicion that undue influence was used in executing the will, or the will may have been acquired through fraud. Each of these grounds can be a challenge to prove. While contesting a will if often a very expensive court process, that fact alone does not discourage very many people from contesting a will.
When the will was not properly drafted or signed
State law regarding Wills in California governs the specific requirements for creating a valid Will. The document must meet certain legal criteria and must be signed by the testator, that is the person creating the will, and by two witnesses who need to be present during, not only the execution of the Will, but also during each signature. One of the most common reasons for contesting a will is the authenticity of the signatures. The will’s validity may also be challenged when a required signature is not present.
A question of whether there was testamentary capacity
A will cannot be validly executed when the testator lacks the required testamentary capacity. 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.
The California statute also lists various mental functions relating to alertness and attention, information processing, thought processes, and the ability to modulate mood and affect. Capacity can be a complex concept in some states. For that reason, it is important to discuss your situation with your estate planning attorney.
The testator may have been subjected to coercion or undue influence
It is unfortunate that, in some situations, it is suspected that undue influence or coercion was used to pressure a testator into either creating the will or including specific provisions in the will. This is also a very common reason for contesting a will when there is evidence that the testator may have been emotionally vulnerable in some way. In fact, as we age, it becomes more and more likely that we may lose some of our mental faculties. That situation can then be exploited by someone close to us. Just as with establishing incapacity, proving undue coercion can also be difficult to prove.
Challenging a will procured by fraud
Dishonesty or fraud can be a major issue in creating wills. Similar to coercion, fraud in the creation of a will is also a common issue. A will can often be challenged by evidence that the testator was likely tricked into signing the will or coerced into including terms in the will that the testator may not have originally intended. For instance, a testator may be given a document that is represented to them as a deed or power of attorney, when in fact it is a will. The problem with proving fraud is that the primary witness, the testator, is no longer around to testify. The witnesses to the Will become extremely important.
Consider a self-proven will to avoid a will contest
If you want to ensure that your family will not be consumed with contesting a will after your death, you should definitely consider creating a “self-proving” will. This specific type of will is recognized in California and takes the guess work out of whether a will is authentic. Basically, you and your witnesses sign your will in the presence of a notary. You and your witnesses also sign a notarized affidavit that identifies who you are and confirms that each of you knew you were signing the will. This notarized affidavit should always be kept as a separate document.
Download our FREE estate planning checklist! If you have questions regarding contesting a will, it is best to work with an attorney who handles these types of lawsuits. Contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
Latest posts by Timothy P. Murphy (see all)
- New Tax Proposals - March 22, 2019
- There are Many Ways to Qualify for Medi-Cal to Pay for Long Term Care - March 20, 2019
- Probate Avoidance Made Easy (part 2 of 2) - March 18, 2019