Executive summary
- A will contest may arise if there is a dispute around the validity of a will and the circumstances surrounding its creation.
- Legal grounds to contest a will may include invalid execution of the will, undue influence, fraud or forgery, or a lack of testamentary capacity.
- Some evidence that could be used to contest a will include witness testimony, medical records, and forensic evidence like ink or handwriting analysis.
- Successfully contesting a will requires overcoming specific challenges, such as gathering enough evidence to overcome the burden of proof, establishing witness credibility, and preserving evidence.
Introduction
A will contest is a common practice during probate if there are concerns about the document or the estate plan. However, a will contest must be grounded in a firm legal reasoning for raising a concern, as a hunch that suspicious action took place or that a will should be invalidated is not enough. Anyone who contests a will must have strong evidence to back it up and overcome the burden of proof that is required for proving their case before the court.
Successfully contesting a will requires gathering a large swath of evidence and presenting it to the probate court—without sufficient evidence, a judge will likely shut down the case. Understanding what evidence is necessary for a successful will contest is going to increase your chances of successfully contesting a will and protecting the interests of the estate in question.
Understanding the grounds for contesting a will
Contesting a will is only legally allowed under certain circumstances. Disagreeing with the distribution of a will or being unhappy with your share of an inheritance is not enough to justify a full contest. Parents do not have to leave assets to their children, spouses do not have to leave assets to their spouses, and relatives do not have to leave assets to their relatives. With a will, anyone is allowed to leave their assets as they so choose. Family members may not like that assets are not left to them, but that is not the same as having a legal reason to challenge the trust.
Legally, if considering contesting a will, you must have both standing and grounds for contesting the will to proceed. In the context of a will contest, standing means that you have a financial stake in the will, like a beneficiary, heir, or omitted heir. If you have standing in the matter, you can follow through to contesting a will, as long as you have legal grounds for doing so—grounds for contesting a will include all the following scenarios.
Invalid execution of the will
For a will to be valid in the State of California, it must meet certain “formalities.” If a will was improperly executed and does not meet those formalities under state law, such as without a valid signature or without the presence of witnesses, the document can be contested as invalid under invalid execution. Evidence of invalid execution may include simply presenting the unsigned will document witness testimony of an attorney or notary who witnessed the signing of the will without additional parties present.
Undue influence
Undue influence is a form of financial elder abuse that occurs when a third party unfairly influences a testator to change their estate plans through coercion, guilt, or manipulation. Evidence to prove undue influence may include testimony from family, friends, or caretakers or medical records proving vulnerability.
Lack of testamentary capacity
Testamentary capacity is the mental ability of someone to understand the nature of their actions and the consequences of their decisions when creating their estate plan. This is a different standard than simply “incapacity” and has factors of its own. It’s not enough that a person has a medical diagnosis of a degenerative illness or some level of cognitive impairment. Their “testamentary capacity” is evaluated based on their understanding of their assets, their family, and the effect of the estate plan themselves at the time of signing. If a person lacked testamentary capacity at the time of the creation of their estate plan, the estate plan would be considered invalid.
Evidence to prove a lack of mental capacity may include some of the following:
- Medical records
- Expert testimony
- Witness statements.
Fraud or forgery
In the event that a document was affected by an incident like fraudulent alterations to its contents, falsification of the document, or a misrepresentation of the creator’s signature. Evidence to prove forgery or fraud claims often involves some of the following types:
- The will document that shows the alleged section or signature altered by fraud
- Expert testimony from a handwriting or ink analyst who can pinpoint suspicious discrepancies in the document in question
- Witness testimony from any party who observed the initial signing of the will or observed acts of forgery
Revocation of the will
If a will was formerly revoked by its creator for the sake of replacing it with a new document with new terms, interested parties could contest the will to ensure that the revoked document is not used to guide the estate planning process. Evidence must be able to prove that the testator had a clear intention to revoke a will document and use a new document in place.
Some potential evidence includes:
- A new and more current valid will document, created with new terms different from the will in question or that explicitly states that all prior wills be revoked.
- The will document in question if it demonstrates any signs that the testator intended to destroy it
- Documentation expressing the testator’s intent to revoke the will in question.
- Witness testimony from family and friends who can attest to the testator’s desire to revoke the will
Key types of evidence to gather when contesting a will
Once you have established whether you have legal grounds to contest a will, you can proceed with highlighting evidence that demonstrates a will is invalid. Evidence is essential in contesting a will and proving invalidity beyond the burden of proof.
Often, proving a will invalid is like creating an impressionist painting—only with a compilation of many pieces of evidence can you establish a clear, full picture that demonstrates your case. The following are some valuable pieces of evidence that can be used to establish a case and will help you determine whether it’s worth contesting a will.
Witness testimony
One of the most common pieces of evidence is something people forget is evidence at all; and that is witness testimony. Witness testimony is a valuable piece of evidence in establishing the validity of a will contest. Generally, witness testimony involves individuals who were close to the decedent, like a family member, close friend, or a caretaker. However, expert testimony from doctors, medical professionals, or handwriting analysts is often also helpful, depending on the case and the concern in question.
Witness testimony is often a key piece of understanding actions and whether any questionable acts occurred. For example, in cases of lack of testamentary capacity, witness testimony may be able to establish more information about the testator’s mental state, such as if they were capable of making sound decisions.
Testimony is also valuable in a variety of other cases. In a case of undue influence, witnesses can attest to whether a person appeared vulnerable to being influenced by another person, or in cases of suspected fraud, witnesses can discuss whether they witnessed suspicious behavior that may have coincided with fraud.
Medical and psychological records
Medical records from the testator’s doctor or psychiatrist can provide important information about the circumstances in which a will was created or altered—this is particularly important in cases of lack of testamentary capacity or undue influence.
Medical records that demonstrate that a will creator had a lack of testamentary capacity at the time of drafting their will may provide an integral piece of evidence in showing that the will should be invalidated. Records may demonstrate whether the testator may have been in a mindstate where they were susceptible to undue influence from a bad actor looking to adjust the estate plan in their favor.
For example, if a will creator had dementia at the time that they created their estate plan, medical records documenting the severity of the condition may indicate that they may not have had the testamentary capacity to understand the consequences of their actions and the effects of their decisions or that they may have been easily confused or taken advantage of by an individual looking to act in their own self-interest.
Forensics
Forensic evidence is often a valuable piece of the puzzle in establishing whether a will is valid or has been affected by some form of foul play. Forensics may include handwriting analysis or ink analysis, comparing those on the official document to others used by the testator in other documents or changes to the official document.
For example, if a specific type of ink did not exist 10 years ago when a will was created, but the ink was used on sections of the will, it would be a sign that the document was altered by someone who was not the testator.
Challenges in proving a will contest
Proving a will contest is generally not a linear process with a large potential for subjectivity, so being able to establish firm, indisputable evidence can be a challenge. The following are some of the most common challenges involved in proving and upholding a will contest.
Burden of proof
The burden of proof is typically on the party raising the contest—it is the responsibility of the person contesting a will to have enough evidence to prove that the will contest is valid. Unfortunately, a firm suspicion or strong belief that a will has been altered is not enough to stand in court.
In many cases, a single piece of the above evidence is not sufficient to confirm the suspicion, invalidate a will, and overcome the burden of proof. Unless there is clear and compelling evidence, such as indisputable forensic evidence of fraud, it’s often necessary to compile multiple pieces of evidence, such as documentary evidence mixed with witness testimony.
Witness credibility and reliability
In addition to finding witnesses, the side contesting a will must also establish the credibility and reliability of these witnesses to demonstrate their ability to prove the will invalid.0 In evaluating the evidence, the judge will review the evidence as presented by each party, for example, the direct examinations and cross examinations of witnesses by the parties. When the witnesses are being examined the judge will listen for details and information to help them decide what happened and determine the outcome of the case.
Some of the questions the court may consider include:
- What is the witness’s relationship to the testator?
- How much time did they spend around the testator?
- What relevant expertise or perspective does the witness have to the facts of the case?
- Might the witness have personal interests or biases that affect their retelling of events?
The role of expert witnesses
Expert witnesses can serve as a by providing a perspective to the facts of the case that a standard witness or physical evidence alone cannot. Especially in complex issues of fraud or mental capacity, testimony from expert witnesses like medical experts serves as an important piece of evidence for painting the overall picture of the circumstances that led to the creation or alteration of a will.
Some of the experts that would be beneficial to consult in a will contest include:
- Forensic experts, like ink and handwriting analysts
- Doctors
- Psychiatrists
Experts who had a close association with the testator or are able to review their medical records can provide valuable perspective for the court. Depending on the nature of the will contest, this testimony can help provide verification as to whether or not an individual may have had mental capacity to contest a will, there are clear signs of fraud in the document, or whether the signature on a will is a forgery.
Lack of or stale evidence
Stale evidence or an overarching lack of evidence is the most common obstacle to overcome in establishing the legitimacy of a will contest. Stale evidence may refer to evidence that is insufficient to prove validity of a will contest or is simply no longer available.
Lack of evidence refers to some of the following scenarios:
- Important files have been destroyed
- Friends or family members who could have testified have passed away
- Potential witnesses have forgotten important incidents
- Expert witnesses are no longer available
A large part of the reasoning behind the importance of pursuing a will contest as soon as possible is to ensure that you have fresh and available evidence. The sooner you pursue a will contest, the less likely you are to lose crucial information.
120 days to contest
It’s important to be able to raise your will contest within the given time limit so that it can be taken seriously and addressed by the court. In California, the time frame established to contest a will is 120 days from the date the will is entered into probate. In Texas, this timeframe is two years. In either case, you must file a will contest by the given legal deadline, or you will lose your right to contest, even if the claim is valid.
With as few as 120 days to contest a will, it’s important to act as quickly as possible in order to have your contest taken seriously and stand in court. During this time, you will need to gather evidence, including gathering witness testimony, compiling medical records, consulting expert witnesses, and more.
Consulting a skilled probate litigation attorney will help you navigate this timeframe by helping you understand the necessary processes involved and gather as much evidence as possible for your will contest.
Object to will validation
Instead of pursuing a will contest, it’s often a better practice to object to the validation of the will altogether. A will must be submitted to the probate court and validated as accurate and reasonable for the probate process to begin.
The 120-day period to contest a will happens after the will is validated and the probate process is commenced. Because this timeframe is so short and gives you a limited time to notify all interested parties in the estate and gather evidence, it’s helpful to object at the beginning of the process before the potentially invalid will is accepted by the court.
How to collect and preserve evidence
Because evidence is an essential component in the will contest process, it’s essential to have professional support to collect and preserve relevant, admissible evidence, as well as help you navigate the nuances and difficulties of raising a contest altogether. Consider consulting professionals like an experienced probate attorney, forensic experts, and private investigators who can help you gather evidence.
The most valuable resource in this process is a probate litigation attorney, who can offer guidance throughout several key stages. An attorney can provide all the following areas of support:
- They can confirm whether you have standing to contest a will
- They can gather evidence needed to contest a will.
- They can help you understand the process for filing a will contest
- They can argue on your behalf in court
- They can support you in alternative dispute resolution methods such as mediation or negotiation
Once you have your evidence put together, it’s essential that you take steps to preserve it properly. Improper handling of evidence can jeopardize a case, so it’s important to be conscious of steps like handling and storing documents, securing witness statements, and maintaining a chain of custody for forensic evidence.
The importance of strong evidence in a will contest
Strong evidence is critical for a successful will contest, and having enough evidence is a necessity for establishing your claim. Often, having sufficient evidence means compiling a case with various forms of circumstantial evidence combined together to confirm the greater issues. Because contesting a will is a detailed process and requires extensive evidence, you should consult a skilled attorney about gathering appropriate evidence for your contest and following the necessary steps for a successful contest.
Our probate litigation attorneys at RMO Lawyers can support you in gathering evidence for a will contest and presenting your case before the court. With decades of experience in probate litigation, we understand what’s necessary to build a strong case for a will contest and what steps are needed to protect evidence. Whether you are raising a will contest or seeking to overcome a will contest, we will work with you to preserve the best interests of the estate and secure your rightful inheritance.
Schedule a consultation with our attorneys at RMO to discuss your case and determine how we can support you.
Glossary
Testator – The creator of a will.
Settlor – Another name for the creator of a will.
Probate – The court process in which the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes if they had a will or following local intestacy laws if there was no will.
Will contest – A probate proceeding where interested parties can dispute the validity of a will as long as they have legal grounds to do so, such as suspicion of mental incapacity or undue influence against a will creator.