Clients often call wondering how they can void a will that they feel does not represent their deceased loved one’s intent. Whether you call it voiding a will, disputing a will, challenging a will, or contesting a will –these all simply mean the court process by which a beneficiary name in a will, or an heir who is not named in the will, seek to set aside a document they believe should not dictate how their loved one’s affairs are handled.
Yes, you can contest a will in California. In fact, it’s a lot more common than you might think. Of course, you will need a basis for your dispute. Dissatisfaction with the gift you did, or did not, receive is not a basis for disputing a will. We talk about some of the good reasons for contesting a will later on.
The answer depends on the facts of your case. For example, if you are an heir of the deceased (i.e., sone, daughter, spouse, parent, etc.), then you very likely have the ability to pursue a will contest. If you are not an heir, but you were a beneficiary under a previous version of the Will (i.e., one that gave you a more valuable inheritance than what you are getting under the current version), then you too will have the authority to dispute a will.
First, consult an experienced Will contest attorney who can help you examine the facts of your case. An expert will contest attorney will be able to advise you whether your case should be pursued, from both an emotional and financial standpoint. Second, file a petition contesting the will in the county court where your loved one resided. Third, work with your Will contest attorney to discover other helpful information and witnesses that can help you prove your case, and secure a favorable result. Lastly, after you’ve obtained all the information you need, you are ready to start your Will contest trial — but almost all courts will strongly encourage the parties to try and settle. This would be done through a mandatory settlement conference, the probate volunteer settlement office program, or mediation with a retired probate judge. Your probate litigation attorney can help you decide which path is right for you.
Asserting legal claims to contest a Will should be done with the assistance of an experienced probate litigation attorney, who can ensure that your claims are set forth fully and completely to present your best case to the judge and court. Below are some of the most common bases for disputing a Will.
The most common basis for disputing a Will is that the person who created the Will was suffering from dementia, Alzheimer’s dementia, had a stroke, etc. This is known as a capactiy or an incapacity claim to void a Will. It essentially means that the person was incapable of understanding what he/she was doing, and therefore, the court should cancel the Will.
Undue influence or coercion claims are the second most popular basis for a Will contest. Undue influence essentially mans that while the person did not create the Will of their own free act, that they were pressured into creating the document or giving a gift to someone, and that if they had not been pressured, they would not have done it. The influence can be a spouse (often a step-parent), child (often a child-caregiver), other caregiver, a member of the clergy, or anyone who has access to someone who needs their services and does not have the ability to resist what they are being asked. These claims often go hand-in-hand with incapacity claims, because the incapacity lessens the person’s ability to resist influence.
While less common than the claims above, there is a cottage industry of Will handwriting experts who exist because of the number of doctored or forged Wills. An experienced probate litigation attorney will have worked with these experts and can help you determine whether your Will is a fraud.
A Will must be probated, or administered, through the County Probate Court in the county in which your deceased loved one resided. Once a Will has been offered (filed) for probate, the county probate court will set a hearing that creates deadlines by which you need to file your Will contest petition. You need not wait until the questionable Will has been filed for probate, but you will need a copy of the Will. You should consult a competent Will contest attorney who can help make sure you don’t miss your deadline to file your Will contest petition.
Most states do not enforce no-contest clauses. California is an exception. Two things to understand are: (1) the no-content clause likely will not be enforced if you have “probable cause” to contest the Will; and (2) if you were disinherited in the Will you are challenging, you have nothing to lose, because you aren’t getting anything under the challenged Will anyway. These issues should be examined in consultation with a probate dispute attorney to ensure you do not inadvertently trigger the no-contest clause.
Normally, we recommend working with a will litigation lawyer familiar with the county probate court where your loved one resided. For example, if the decedent lived in Los Angeles, we recommend working with a Los Angeles will litigation attorney. Even if you live elsewhere.
At RMO Lawyers, we protect families and people like you everyday. Contact us anytime for a free consultation, by email at firstname.lastname@example.org or call us at (424)320-9444.
RMO Lawyers, LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com