In California, wills are presumed valid until proven otherwise, meaning that you, as the challenger, have all the burden of proof to show that the will should not be accepted. Will disputes can be protracted and difficult, particularly if families are involved, so talking to a contested probate lawyer here in San Diego, CA with experience is the best first step if you have any concerns about a will.
Will Disputes: Contesting a Will in San Diego, CA
In legal terms, “grounds” refers to having a basis for making a claim or disputing something. Only those who are in some way affected by the outcome of a will have standing to contest it, and your reasons for contesting the will must be such that there is some way for the law to give you relief. In other words, you cannot contest a will because you don’t like it. You can only contest it if there are legal reasons to do so.
Undue Influence
With an undue influence claim, you are saying that someone put inappropriate pressure on the person who made the will, who is known as the testator. This must be some kind of manipulation that caused them to either make a will or to change a will in a way they would not otherwise have done. It’s difficult to prove this, as you will need to have evidence to show that the deceased was under such pressure or manipulation as well as a way to show that the decision they made was not what they would have chosen otherwise.
Undue influence usually happens when a family member exerts pressure on the testator, but in some cases undue influence can be exerted by a caregiver or even a new friend. Undue influence itself could be pressure or even threats, as, for example, if a caregiver refuses pain medication to the testator if they don’t rewrite a clause in their will.
Lack of Capacity
For a will to be valid, the person who makes it must be of sound mind. If you suspect that your loved one was not fully aware of what they were doing when they made their will or changed it, you may be able to bring a claim on these grounds. You’ll need to be able to show through medical records and witness testimony that the testator was under the influence of a drug, was mentally incompetent, or was otherwise not of sound mind. Bear in mind that simply because a person has gotten old and eccentric is not grounds for lack of capacity in itself.
Fraud
Another grounds for challenging a will is fraud. When you are charging fraud, you are saying either that the testator put provisions into the will based on fraudulent information, signed something that they did not know they were signing, or that the entire will is a fraud.
For example, fraud can occur when you have a will of multiple pages and someone slips out some of those pages and substitutes others that would change the terms of the will. Fraud can also occur when someone lies to the testator or falsifies documents, and the testator puts something in the will or leaves something out on the basis of this fraudulent documentation. In rare cases, the whole will is entirely a fraud.
Invalid
Finally, you can challenge whether the will is actually valid in the sense of whether it was properly written and executed. The will must be in writing, it must be signed by the testator, and it must be signed by two competent witnesses who do not have an interest in the estate. If a will does not follow all the legal requirements of California, it can be declared invalid.
Your Right to Contest a Will
To bring a challenge, you must have standing, and this means you must have an interest in the estate that the will covers. Anyone who is actually named in the will or in any previous will that the current will replaces has standing to bring a challenge. All the legal heirs of the deceased also have standing, even if they’re not actually named in the will, as do any unpaid creditors of the estate.
How to Bring a Challenge
Talk With a Contested Probate Lawyer
If you have any concerns about a will, talk to a lawyer as soon as possible. You don’t want to miss any deadlines, and the further along things go in probate, the more difficult it becomes to bring a challenge. You’ll also need the help of a lawyer to verify that you have grounds and to find the necessary evidence for proving those grounds.
File a Petition to Contest the Will in Probate
A will really does not mean much until it’s actually admitted into probate by the probate court, so you won’t be able to bring a challenge until this has happened. Once the will has actually been entered into probate, you’ll then file a petition that contests the will.
Attend the Hearing
Even if you didn’t know the will was going to probate in advance, you should receive notice of a petition for probate, and when that happens, you can go to that initial hearing and object. You’ll want your attorney to speak for you and present your grounds.
File a Petition Within 120 Days
If for some reason you missed the initial filing into probate, or if you did not have a reason to think there was a problem with the will until after probate was already filed, you can still bring a contest within 120 days of the date that probate is opened on the will. This will be a legal filing that requests the court to change its mind about admitting the will into probate.
Get Ready for Discovery
During discovery, both sides in the dispute exchange evidence. The purpose of discovery is to ensure that everyone knows all the facts of the case. That way, the case can proceed as smoothly as possible in court. Discovery also gives each side an understanding of how strong the other side’s case is. In some cases, it may become clear that you don’t want to proceed once you see the strength of the other side’s case. Or, they may not want to proceed once they see the strength of yours. In any case, discovery will help your lawyer to make the strongest possible arguments in court.
Mediation
The court will almost certainly order that you make a good faith attempt to resolve the issue outside of court through mediation. A third party will facilitate discussions between you and the other side to try to come to a resolution, and good mediators know how to find creative solutions. Your lawyer can help you prepare for mediation as well as be with you in the process, and if you’re able to resolve things through mediation, this is usually the best for everyone involved.
Trial
If mediation does not work, then you will need to get ready for trial, and your lawyer will of course take the lead here and prepare strong case on your behalf.
If you need to contest a will, contact the law office of Frisella Neilson, APC in San Diego today for help.
