Providing knowledgeable and experienced assistance Contesting a Will
A last will and testament is a written document memorializing the testator’s legacy to his or her heirs. As such, the will deserves the utmost respect. But if there is something suspicious about it, prompt action is required to determine if the will is valid. An interested party has the right to raise objections to protect their own rights and the integrity of the process. At Van Dyke & Associates, APLC in San Diego, our California probate litigation attorneys represent estates and purported beneficiaries in will contests. We have the skill and determination to protect your rights and fight for the best possible outcome.
Understanding Will Contests
A will is a document written and signed by the deceased with the attestation of witnesses. It is the document that specifies how the beneficiaries should distribute the property among themselves. It should now be clear that probate litigation is nothing but “contesting a will.” A will can be contested on various grounds.
Reasons for challenging a will:
In practice, there are two types of will challenges. One type is a direct challenge to the will itself. The second type is a challenge to the interpretation and execution of the terms of the will. These objections arise during the probate process, and include claims relating to:
Refusal to provide an accurate inventory of estate assets
Failure to distribute designated assets to all heirs
Handling of guardianships and conservatorships
Failure of a fiduciary to act in the beneficiaries’ interests
Refusal to provide details about estate debts and creditors
Ability to serve effectively as the personal representative
Recovery of trustee and attorney’s fees in litigation
Our attorneys strive to resolve controversies appropriately and in a timely manner to minimize probate delays and monetary losses to the estate.
Common Issues with Wills:
Questions of Document Validity—
A direct challenge to the will document itself can be warranted if there are concerns about the validity or if it was signed under duress or without cognitive ability.
Will Execution or Disbursement —
Don’t let executors and trustees exceed their authority in managing the generational wealth of your family. We'll fight for your rightful inheritance.
Inaccurate Inventory or Accounting —
Often Trustees are appointed with no prior legal experience. The responsibility can be daunting and if not handled properly could result in breach of fiduciary duty and legal repercussions.
Fiduciary Disputes —
In cases of contested accountings, our firm drafts cogent reports. Where appropriate, we litigate allegations of deficient fiduciary performance by the trustee.
Glossary of Essential Terms
A will is a legally-binding document that lets you determine how you would like your estate to be handled upon your death. If you die without a will, there is no guarantee that your intended desires will be carried out.
Will Contests —
A will contest is a formal challenge in Probate Court to a document presented as a decedent’s authentic, legal and valid will. For a will to be valid in California, it should be written, signed by the testator or another on the testator’s behalf, or witnessed by two people who also sign the document Wills that do not conform to these requirements might still be valid if there is clear and convincing evidence that the testator intended the document to be a will.
What grounds do you need to contest a will in California?
The grounds for a direct challenge to the validity of a will include:
Lack of capacity — The testator was not mentally sound at the time the will was executed.
Undue influence — A person close to the testator used improper manipulation to get what they wanted in the will.
Coercion — The testator was forced to draft will provisions that did not reflect their true intentions.
Fraud — The testator was deceived about the terms of the will.
Counterfeit — The will is a fabrication. A will might also suffer defects that make it impossible to execute. These problems include: Vagueness — If the terms are too unclear about the testator’s instructions, it might be declared void.
Partial intestacy — The will does not cover all the decedent’s property or gives property to person’s no longer living.
When a will is declared void, property passes to heirs according to the state’s laws of intestate inheritance.
How long do I have to contest a will in California?
Direct challenges to the validity of a will should be undertaken immediately. As soon as you receive a notice that a document purporting to be the decedent’s will has been presented to the Probate Court, you must prepare your objection. You must appear at the initial hearing to voice your objection and then file a written complaint. If you delay, and a will is admitted to probate, it is deemed valid. From that point you have 120 days to petition the court to revoke the will..
What if the will contains a no-contest clause?
A no-contest clause is a term of a will that disinherits beneficiaries who raise challenges in Probate Court. The clause is meant to deter family squabbles, but can lead to injustice when heirs are too intimidated to assert their rights. California law disfavors no-contest clauses, but will enforce them in three situations:
A direct contest brought without probable cause
A pleading to challenge a transfer of property on the grounds that it was not the transferor's property at the time of the transfer
The filing of a creditor's claim or prosecution of an action based on it
Under the circumstances listed above, a will contest is a calculated risk, which you should discuss with an experienced and knowledgeable probate litigation attorney.