Estate Litigation Attorneys Serving Southern California

Most of us have no doubt seen television or cinema dramas where an attorney reads the terms of someone’s last will and testament and audible gasps arise from the decedent’s family members—someone feels shortchanged or left out. In real life, these will-reading scenes before gathered heirs and would-be beneficiaries rarely happen this way, but fiction often reveals real-life emotions and decision-making.

When someone dies with a will and the matter goes through the probate process, there can indeed be challenges to the terms and legitimacy of the will itself. 

If the person died with a living trust in place, disputes are still possible, but it’s often more difficult to challenge because the trustee oversees the entire process. Also, the administration of a trust is private (while the administration of an estate under a will is public), which complicates matters further. 

If you have lost a loved one in Southern California and believe that their will or trust is invalid for any reason, contact the estate litigation attorneys at Bochnewich Law Offices. We will listen to your concerns, examine the documents and the facts surrounding your case, and advise you on your strongest legal options going forward.

We proudly serve clients throughout Southern California in the counties of Los Angeles, Orange, San Diego, Riverside, and San Bernardino.

Possible Grounds for Disputing a Will or Trust

The reasons to challenge a trust or a will are basically the same, but the difference is that a will must be accepted by the probate court to become valid in the first place. A trust is already operationally legal, so it takes effect immediately upon the death of the grantor of the trust. 

It’s not enough just to feel shortchanged or left out in a decedent’s estate planning document, whether a will or a trust. You must also be able to assert – and prove – a ground for challenging the legitimacy of the legal instrument. Common grounds for contesting a will or trust revolve around the following: 

• MENTAL CAPACITY: You must be 18 years old or older and of sound mind to create a will or trust in the Golden State. Adults are presumed to be of sound mind when they create these instruments, but if you can show that either their mental capacity or issues of substance abuse tainted what they did, you might be able to get the document declared invalid. However, this is not easy to do. Courts have held that even those with dementia can still have the capacity to know what they’re agreeing to. 

• UNDUE INFLUENCE: Another area that can be challenged involves the actions of one person trying to unduly influence the testator of the will or grantor of the trust in their favor. Perhaps one of the person’s children coerced him or her into creating the will or trust to favor them. Again, you would have to be able to present evidence that this occurred. 

• FRAUD: Fraud can be a version of undue influence and taking advantage of someone’s mental capacity. Perhaps a fraudulent will was presented to the testator to sign, who then did not take the time to read it, or in doing so, failed to catch all its implications. 

• NOT PROPERLY ISSUED OR VALIDATED: A will in California must be written or typed, signed by the testator, and witnessed by two disinterested parties who are not named as beneficiaries of the will. If these requirements were not met, the will is invalid. 

• MULTIPLE WILLS: A testator can always void a will and issue a new one. Perhaps the will be introduced to the probate court is not the latest version. A living trust can also be canceled and reissued, or modified from its current form. 

• BREACH OF FIDUCIARY DUTY: The executor of an estate in probate or the trustee of a trust owes the heirs and beneficiaries certain fiduciary duties of honesty, prudence, and loyalty. They cannot use their roles for self-enrichment. Though this won’t necessarily get the provisions of the will or trust changed, it can lead to the appointment of a new executor or trustee. 

Challenges to a will or trust must be lodged with the probate court in the county where the decedent lived and died. There are a few grounds for contesting a will or trust, but the path to proving them can be difficult. 

Who Can Challenge and Will or Trust? 

To contest a will or trust, you must have legal standing. This means that you must be a beneficiary named in the legal document, an heir under the state’s laws of intestacy, or a creditor. In addition, you must file your petition to challenge the document within 120 days of receiving the required notification that probate or trust proceedings are commencing. 

How to Challenge a Will or Trust 

For both wills and trusts, you must petition the probate court in overall charge of the proceedings with your challenge. The California Probate Code Section 8250 states: “When a will is contested under Section 8004, the contestant shall file with the court an objection to probate of the will.” 

For a will, the probate court is basically supervising all steps in the process, but with a trust, they are more in the background but still legally in charge. Contesting a will or trust is challenging, so you must have solid evidence to mount your challenge. Get the skilled support you need when you work with our team of estate and trust litigation attorneys.