How Can I Challenge a Will?
We’ve all seen televised dramas in which a serious-looking gentleman sits behind a desk in an oak-paneled study and reads the contents of someone’s last will and testament to an audience of heirs and would-be beneficiaries. All of a sudden as the contents are revealed, someone—or maybe a combination of persons—utter gasps of disbelief.
Of course, such dramas rarely happen. Wills, along with death certificates, are generally presented to a probate court in the county in which the testator, or will-writer, lived and died, and then the personal representative named in the will becomes the executor of the decedent’s estate. What happens after that essentially follows legal precedent: debts and taxes must be paid before beneficiaries can receive what the will designates for them.
This does not mean, however, that a person’s will cannot be challenged, or that it will not be challenged. Heirs and presumed beneficiaries can challenge the validity of the will on various grounds, which will move the proceedings into legal overdrive and the probate judge will have to decide if the challenge is legitimate.
If you’re an heir to an estate or a legitimate beneficiary of a deceased person’s estate somewhere in Southern California and you want to know how to challenge that person’s last will and testament, contact the estate administration and probate attorneys at Bochnewich Law Offices. Our team will discuss your options with you and help you petition the probate court to hear your challenge. We proudly serve clients throughout the counties of Los Angeles, San Bernardino, Riverside, Orange, and San Diego.
What Makes a Will Valid in California?
To create a will in California, you must be 18 years of age or older and of sound mind. Your document must be in writing and witnessed by two persons who are not named as beneficiaries in the will. A certificate in the exact form of California Probate Code Section 6384 must be attached and signed and dated. If these requirements are not met, then the will can be challenged as being invalid.
The California International Wills Act also recognizes international wills that meet the above criteria. Wills do not need to be notarized in California, but if they are, it helps prove the validity of the will in probate court without one’s witnesses or attorney testifying to its legitimacy.
Who Can Contest a Will in California?
To contest a will in California, you must have what is called legal standing. To have standing, one of the following must apply:
You must have been named as a beneficiary in the current will or in previous versions.
You must be one of the deceased person’s legal heirs such as a spouse, child, parent, or sibling.
You must be a creditor to whom money is owed.
If you were the deceased’s best friend—but not a relative, creditor, or a person mentioned in any version of the will—you typically cannot challenge the will.
Grounds for Challenging a Will
The validity of the will can be challenged if it was not created according to California’s legal standards. That is the first line of challenging a will. In addition, other challenges may be based on:
NOT THE MOST CURRENT VERSION: A challenge can be launched alleging that the will before the court is not the most current version. This is where having an attorney help you create your will can prove invaluable. Your attorney can attest to the primacy of the will being presented—that is, that it is the latest version.
UNDUE INFLUENCE: Someone exerted undue influence on the testator, or will-writer, in crafting the will. This could be a son or daughter who plays on their parent’s love and concern to win what could be called “most favored person” status. It could also be done through threats or coercion.
NOT OF SOUND MIND: You can also allege that the will being probated was created when the testator lacked the mental capacity to know what he or she was doing. This can be a tricky challenge, however, as courts have often ruled that even those with dementia are capable of knowing the consequences of what they’re dictating in a last will and testament.
FRAUD OR FORGERY: A challenge can also be launched based on the assertion that the will is not real, that it is the result of forgery or fraud.
How To Contest a Will
You must be quick to challenge a will. Once you receive a notice that probate is commencing, which the personal representative, or executor of the estate, is required to send to all creditors, heirs and beneficiaries, you have to appear in the first probate court session to object to the will. After that, you will be given time to file a written petition to challenge the will. Through all of this, you should consult with an experienced probate and estate litigation attorney to make sure everything goes forward properly.
You can still petition the court over the validity of a will after probate has commenced, but you must do so within 120 days of the opening of probate proceedings. The court may or may not accept your petition depending on how cogent a case you make.
Skilled and Collaborative Legal Counsel
When you feel a will is invalid, out of date, been improperly influenced, or even forged, you should launch a challenge at the very beginning of the probate process. You may have some latitude later on to challenge the document, but the earlier, the better.
Reach out to the probate/estate administration attorneys at Bochnewich Law Offices if you have questions or concerns about a will anywhere in Southern California. We will meet with you, listen to what you have to say, and then advise you of your best course going forward. No matter where you are in the process, we can guide you toward a resolution.