It can be a terrible shock when a loved one dies. There can be a second jolt if you later find out that your loved one’s will is not what you believe he or she intended. After all, the will is an expression of a person’s final wishes regarding the distribution of their property.
California law provides a means of correcting the situation called a “will contest.”
The legal basis for objecting to a will
You cannot contest a will merely because you don’t care for its terms. You can, however, contest a will on these grounds:
- Lack of proper formalities: In order for a will to be considered valid in California, it must be in writing then signed by the testator (the person who’s creating the will) or by someone who signs it in the testator’s presence and at the testator’s direction or by a conservator. The signing of the will must be during the testator’s lifetime and have at least two witnesses.
- Lack of mental capacity: Under California law, the testator must have the mental capacity to make a will.
- Undue influence: This refers to a situation in which a person has excessive control over a vulnerable testator and persuades or coerces the testator to make decisions that aren’t in their best interest. In many cases of undue influence, the person is a family member, care provider or spiritual advisor.
- Fraud: An example of this would be a son or daughter who tells a parent lies in order to obtain more favorable will terms.
- Duress: This often involves threats of injury.
- Mistake: A will can be challenged if it includes an error in the expression of the testator’s intent.
- Revocation: This refers to situations in which a will has been revoked and replaced by a later will.
We’ll continue this discussion of will contests in a follow-up blog post. Please check back.