When should someone contest a will, and who can do it?

| May 17, 2019 | Estate Planning

For the most part, will contests happen less often than the movies would have us believe. However, there are some circumstances where a will contest is appropriate. Perhaps a family member suspects someone took advantage of their loved one, or a creditor makes a claim for a debt they are owed.

Today, we cover will contests in California: Who can legally challenge a will, and on what grounds?

“Interested parties” in probate

Only certain people are allowed to challenge a will. They must be “interested parties,” such as:

  • A beneficiary named in the will
  • Someone designated as a beneficiary in a prior will
  • A creditor to whom the deceased owed a debt
  • The deceased person’s heir, such as a spouse, child or sibling

Heirs occupy an interesting position in probate. If someone dies without a will, their property transfers to their heirs. However, even if someone creates a will, an heir can challenge the will if they are left out.

Grounds for a will contest

When someone seeks to invalidate a will, they must show grounds for doing so. The most common grounds for contesting a will are:

Fraud or undue influence

Sadly, some individuals attempt to take advantage the elderly or mentally incapacitated for their own gain. If there is evidence someone close to the deceased person inappropriately influenced them in order to benefit from the will, the document can be invalidated.

Lack of capacity

Anyone over 18 is presumed to be mentally capable of creating a will. However, evidence of dementia or other mental problems may show the deceased lacked capacity.

Failure to meet legal requirements

A will must be written, signed by the deceased and witnessed by two people to be valid. Failure to meet these requirements can invalidate the will.

Challenging a will requires strong evidence

Will contests remain a rare occurrence, primarily because strong evidence is necessary to invalidate a will. But, if someone encounters a red flag regarding a loved one’s will it helps to consult with a skilled estate attorney who can help.