If you feel you that you have been, or may be wrongfully disinherited from a will in California, you should act quickly to make sure your property interests are protected. You must timely file papers with the probate court to contest the validity of the will or else run the risk of losing your right to inherit property under the will. Here are the most common grounds for contesting a will in California.

Failure To Follow Proper Formalities

A will can be contested in California if it was created without following the property testamentary formalities required by California law. Specifically, a will in California must be in writing and signed by either (1) the testator or (2) in the testator’s name by some other person in the testator’s presence and by the testator’s direction, or (3) by a conservator pursuant to a court order to make a will under Section 2580. California Probate Code §6110.

The will must be witnessed by being signed, during the testator’s lifetime, by at least two persons, each of whom (A) are present at the same time and witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will. A will that is not executed in compliance with the above requirements can be contested by any interested party.

Lack Of Testamentary Capacity

California law requires that the testator possess the mental competency to make a will. An individual is not mentally competent to make a will if, at the time of making the will, the individual could not: (A) understand the nature of the testamentary act. (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

Individuals who suffer from a verifiable mental health disorder with symptoms including delusions or hallucinations, are not competent to execute a valid will. Section 6100.5, California Typically, incompetence is established with medical evidence of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed. With strong medical records suggesting a lack of capacity, you increase your chance of bringing a successful will contest in California.

Undue Influence

Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will, resulting in inequity. Welf. & Inst. Code, § 15610.70. The test for undue influence is governed by a series of factors set forth in section 15610.70 including: (1) The vulnerability of the victim, which includes incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability. (2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification. (3) The actions or tactics used by the influencer.

Evidence of actions or tactics used may include, but is not limited to, all of the following: (A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. (B) Use of affection, intimidation, or coercion. (C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes. (4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. (b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Because direct evidence as to undue influence is rarely obtainable, it is typically proved by inferences drawn from all the facts and circumstances.

Fraud

False representations used as pressure upon the mind of the testator to affect the disposition of his property constitute fraud. If the will is the product of fraud on the testator, it is subject to be declared invalid for that reason. For example, a will beneficiary could misrepresent some material fact about another beneficiary to cause the latter to be disinherited. Examples of such fraud could be that a sibling was convicted of a crime or has otherwise engaged in illegal or immoral acts, or has made disparaging comments about the testator. If the will has been prepared based on the fraud, it can be set aside in a successful will contest.

Duress

Duress means an unlawful threat that limits the victim’s independence of judgment or action. Duress is any improper threat or condition, such as coercion, that limits a person’s ability to think or act independently. A will written under duress, such as by the imposition of threats or injury, is invalid.

Mistake

A will can be challenged or reformed if it contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted. Revocation There are two ways to revoke a California will: (a) by a subsequent will which revokes the prior will or part of it expressly or by inconsistency. (b) by it being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction. Cal Prob Code § 6120.

Please contact us at 888-441-2355 or [email protected] with any questions regarding these issues or if you are ready to start a case. Our representatives are standing by to answer any inquiries you may have.