Hackard Law

Sacramento Civil Litigation Attorneys

Contesting a Will in CA

It's an all-too-common refrain: after a loved one dies, family squabbles erupt over money. Those disagreements can fracture a family and rip them apart.

Only "interested persons," as the law defines them, can challenge a will-and interested people require valid grounds. If you wish to challenge a will, retain an experienced lawyer to represent you. Not only will the assistance of an attorney bring your case to the best resolution possible, will contests often take a huge financial and emotional toll on family members-so an experienced attorney can help preserve family relationships that may otherwise become strained during the dispute.

To schedule a free consultation with one of our Los Angeles and Santa Clara estate litigation attorneys, call Hackard Law today, or send us an email through our online contact form.

Interested Persons

California Probate Code §48 broadly defines interested persons as:

· An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding

· Any person having priority for appointment as personal representative

· A fiduciary representing an interested person

Fundamentally, to contest a will in California, the question you must answer this question in the affirmative: By contesting the will, would you receive more money?

Examples of interested persons include:

· An at-law heir who would have inherited by intestacy, if the decedent died without a will

· A child who might have received a larger inheritance under a prior will, but received less under a later will

· A creditor of an heir who was omitted from a will

· An omitted natural heir

Grounds to Contest a Will

At Hackard Law, we seen the following while representing clients involved in will contests:

· Errors (mistakes): The decedent incorrectly prepared the will

· Threat / intimidation: Someone threatened the decedent into preparing the will

· Duress: Someone confined, restrained, or in some manner incapacitated the decedent

· Undue influence: Someone close to the deceased (for example, a caregiver, family member, friend, nurse, financial advisor, or lawyer) unfairly used a position of trust

· Misrepresentation or fraud: Someone misled or lied to the decedent while preparing the wi· Revocation: The decedent revoked the will

· Capacity: The decedent lacked the mental competence to understand the contents of the will

· Improper execution: The will was not properly signed, witnessed or notarized (acknowledged)

· Forgery: The will was falsified

Mental Competency

To prevail in a will contest, the contestant must prove that the decedent lacked testamentary capacity.

Mental competency is also known as testamentary capacity. A testator is presumed competent, and can bequeath (give away) his property however he wants-even if someone disagrees with whether the decedent was fair or made the right choice. A decedent can give more, less, or exclude an heir. He can give his fortune to a charity or a new wife. Courts safeguard this concept of free alienability of a person's property. However, the decedent must not demonstrate mental incompetence.

What do mentally competent or of sound mind mean? When the decedent made the will, did he know what he was signing? Did he know the importance of the document? Was he aware of the property he owned, his financial circumstances, and his family relationships?

Did the decedent suffer from alcohol or substance abuse? Did the decedent ever receive a diagnosis for mental illness, such as depression, bipolar disorder, schizophrenia, dementia, or other conditions that could cause delusions?

Warning Signs

Interestingly, many family fights over wills don't just come out of the blue. We see certain recurring patterns, including:

· Significant economic differences: A wealthy beneficiary may feel no urgency to sell an estate asset or rush the estate administration process. Other beneficiaries, who may struggle from paycheck to paycheck, feel the opposite.

· Jealous siblings: Sometimes brothers and sisters have long-simmering feuds, jealousy, or other festering dynamics that now spill over into trying to even the score

· Multiple executors: Even if executors usually get along, they may not see eye to eye. Logistical challenges occur when multiple representatives live far from each other, or when differing schedules make meetings difficult to hold.

· Unreasonable or irrational beneficiaries: Will contests can grow more complicated and intense when a beneficiary suffers from financial, emotional, or neurological difficulties, or substance abuse or addiction issues.

· Unequal inheritance or advancements: Fights over the decedent's will may ensue if a decedent does not equally divide an estate among natural heirs (for example, children), or if one beneficiary receives an advance on an inheritance.

· Undue influence: Family, friends, and caretakers can unduly influence a decedent, especially later in life. This is also called financial elder abuse.

· Disinheritance: Cutting someone out of the will.

· Estrangement: An heir or beneficiary had no contact with the decedent for a long time. Hurt feelings and resentments abound.

· Blended families and second marriages: Tempers can flare and emotions may grow volatile when decedents left behind multiple marriages, stepchildren, second spouses, or young brides or grooms.

Will Contests Exact Serious Tolls

If you believe you have grounds to contest a will, or if you need to defend yourself in a will contest, consult an experienced attorney as soon as possible. These court cases take financial and emotional tolls. They can tear apart already-volatile family relationships. You need a seasoned will contest lawyer to help you determine your potential legal fees, the likelihood of success, and the fallout among family members. Once engaged for battle, you may lose the option to turn back, and irrevocably break familial bonds.

Your elder law attorney can also help you resolve your case without going to court, if feasible. Often, settlement is in everyone's best interests.

Were You Sued in a Will Contest? Do You Believe You Have Valid Grounds to Contest a Will? Call an Experienced Los Angeles Will Contest Attorney for Help

If you are brought into a will contest case, encounter disagreements among beneficiaries or estate representatives, or you have questions about challenging a will, don't delay. You have much to lose.

The experienced, compassionate elder law attorneys at Hackard Law focus on will contests. To schedule a free consultation, call us right away at (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or contact us confidentially. We serve clients from throughout California.