The Challenge of Contesting a Will

A “will contest” involves a formal objection raised against the validity of a will–part or all of the document can be contested. Law firms that practice estate planning are often asked about the validity of wills or the feasibility of overturning a will. In many cases the reality is that it is difficult to get the terms of a will thrown out–though it is not impossible. The main reason wills are so difficult to overturn is because there are only four very specific legal grounds that can be used.

Objection #1: Invalid Process
If a will was not signed in accordance with applicable state laws, the will is not valid. In most states, a will must be signed in the presence of at least two witnesses who observed the testator signing the document. The witnesses must also sign the will in each other’s presence order to make it valid. Not meeting these requirements are the most common reasons for a Will to be contested; especially if there is only one witness. In cases where the testator was not present, the defect can often be corrected if witnesses testify under oath that the testator confirmed to them that his signature was valid.

Objection #2: Lacking Mental Capacity
If the testator did not have mental acuity, or lacked the testamentary capacity needed to sign the will, it is not valid. The word “capacity” does not always mean the testator was acting under some kind of insane delusion. Testamentary capacity involves three requirements: (1) He must fully understand the value and nature of his assets; (2) He must fully understand who should logically inherit his assets and possessions;
(3) He must fully understand the legal implications of signing a will. Often the lack of capacity is difficult to prove–even if a person who shows signs of dementia. If the testator had not been to a doctor within days of signing the will, and if witnesses assert that he showed capacity, then it will most likely remain valid.

Objection #3: Undue Influence
If the testator was unduly influenced into signing a will, it is not valid. Elderly people often become susceptible to the influence of others, and certain individuals may convince the testator to create a will that favors them as beneficiaries. A presumption of invalidity arises when there is evidence that such undue influence was exerted on the testator, such as over-persuasion, duress, force or coercion. However,
the burden is initially on the person contesting the will to show that undue influence occurred. Things like nagging and verbal abuse aren’t generally enough to overturn a will; nor is the fact that affection and kindness was extended to the testator by the beneficiary.

Objection#4: Fraud
If the will was procured by fraud, blatant lies, or if someone tricked the testator in signing, then the will is not valid. For example, if the testator thought he was signing some other legal document, or if someone tricked the testator into signing a will by slipping it in with other documents that needed to be signed,
then it would be deemed to have been procured by fraud. However, it all comes down to what the witnesses have to say as to why they were asked to serve as witnesses in the first place.

It is not impossible to challenge a will in court if it meets one of the criteria above. But it is often not an easy road. To have help with these issue in San Diego and nearby California communities feel free to contact the estate planning lawyer at the Law Office of Scott Soady.