What is a Will Contest?

A Will Contest is a type of Court legal action designed to invalidate all or part of a Will. Will contents often involve the allegation that the person who made the will, often termed the decedent or Testator, was senile, had delusions, or was of unsound mind at the time the documents were created, or was subjected to fraud, coercion or undue influence during its creation and implementation, or that there are ambiguities in the document, or the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

If the Will Contest is successful, the Court can rule that all or part of the Will is invalid and can distribute property owned by the Testator as if the Will did not exist, or use the last previous Will, depending on the specific facts and circumstances.

What are the Usual Reasons for Will Contests?

The typical objections are:

How is a Will Contest Started?

A Will Contest can either be in a separate lawsuit or as an objection filed in a Probate proceeding started by someone who wishes to have the Will deemed valid.

Who Can Start a Will Contest?

A Will Contest is started when an "interested person" files a written objection to some aspect of a Will. An "interested person" is rather loosely defined to include anyone who has a stake in the outcome of the Will.

Does the Testator's Mental Competency at the Time of Signing Affect a Will's validity?

The person seeking to have the Will accepted for probate generally has to establish that the deceased was of sound mind and memory at the time the Will was executed. If the People who served as witnesses when the Will was signed say the deceased was of sound mind, knew where he was, what the day was, who his family members are, and knew that he was signing his Will, the burden often shifts to the person challenging the Will to prove it should not be admitted to probate. Medical records of the decedent obtained for the time frame when the Will was signed may be relevant to the issue of mental competency.

What are the Rights of a Child Left Out of a Will?

A Child left out of a Will may bring a Will Contest, but must show by valid evidence that the Will or a provision in the Will is invalid. The mere fact that a Child has been omitted from a Will does not alone justify a Will Contest.

Are "Death-bed Wills" Valid?

The closer to the death of the Testator the Will is prepared the more likely it is to be challenged by a disappointed beneficiary. It is often the case that as death grows nearer, the metal faculties of the decedent are on the wane. This is also a time when pressure may be brought by family members to have changes made to favor one or another recipient. For this reason, many Will Contests arise when last minute revisions are made to existing Wills, or existing Wills are replaced by a new Will with different provisions. Wills drawn up during the last days of the Testator from a Hospital bed are often attacked as invalid.

Suppose a Person Is Mentally Competent at the Time of Making a Will but Subsequently Loses It. Is the Will Still Good?

Yes. The fact that the person making the Will loses it or has weakened mentality sometime after the Will is made has no bearing. It only becomes important should the person having an unstable mind want to change the Will at a later date.

What Is the Difference Between a Will and a Trust?

A Trust is a way of transferring your property to an artificial legal entity or "person" before your death, while still having the use and/or control of it during your lifetime. As the Trust owns legal title to the property in it at the time of your death, and the Trust does not die with you, the property does not have to go through "probate." Probate is the legal process which inherited property goes through to transfer the title to the beneficiary. If you have a large estate, or even a small estate with real property (i.e. real estate), it is often advantageous to set up a Trust, as it usually ultimately is far less expensive. A probate lawyer can help you decided whether a Will or a Trust is best for you and your estate.

Is There Such as Thing as a Trust Contest?

The validity of a Trust whereby property has been transferred by someone who has died can be challenged on much the same grounds as a Will. A Trust can be found to have been procured by fraud, undue influence or coercion and if this is proven, the Trust can be rescinded, set aside or reformed.

Is There Such a Thing as a Deed Contest?

Sometimes it is the case that a gift is made of real property by deed or conveyance. If this has been done by someone who receives nothing in exchange, or if the transfer is procured by fraud, undue influence or coercion, the deed or conveyance can be set aside or revoked. Deed Contests may arise when an elderly parent makes a gift to a third party of property that would ordinarily pass to the children via a Trust or Will.

What is a Power of Attorney Contest?

A Power of Attorney is a legal document that permits someone to buy and sell property and take other legal actions on behalf of the person who issued the Power of Attorney, who may be so elderly or infirm as to need assistance of this type. The law requires the person taking the action to act honestly and in the best interests of the person on whose behalf the action is taken. When a person acting under Power of Attorney takes actions designed for their own benefit and contrary to the interests of the issuer, there has been a breach of fiduciary duty and legal action may be taken to protect the interests of the issuer.

What is a No Contest Clause?

A will, trust, or other instrument may contain a "No Contest Clause," to the effect that a person who contests or attacks the instrument or any of its provisions takes nothing under the instrument or takes a reduced share. These clauses are designed to make people think twice before suing to in validate a will or trust. Under certain circumstances, these clauses are valid in California, but there are a number of exceptions when they may not be applied. Moreover, if the Will or Trust is deemed in invalid, the clause will be disregarded. California law provides a procedure whereby, under certain circumstances, a person who believes that a Will or Trust may be invalid can seek an advisory ruling from the Court in such a way that a No Contest Clause would not be triggered.

Who Can Contest a Will or Trust?

In order to contest a will, a person must have "standing."  A party has standing to contest a will only if the contestant is an "interested person."  Probate Code §§ 1043, 8250; In re Collins' Estate (1968) 268 Cal.App.2d 86.  An interested person is defined under Probate Code § 48(a) as:  (1) 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.  Unfortunately, except in certain very clear situations, the question of whether or not a particular person truly has standing to contest a will can be a very complicated legal question, because there are many different rules that govern this issue.

Trust beneficiaries have standing to petition the court.  [Probate Code § 17200(a)].

Wills and Trusts are Different, Do Different Contest Rules Apply?

There are many important differences between a will and a trust.  These differences pertain mainly to tax issues and the need for Probate proceedings after the death of the testator.  However,or the purposes of a contest in which someone is attempting to challenge a will or trust, the rules are essentially the same regardless of whether a will or trust is involved.   The same rules of construction apply whether the document is a will, a trust, or any other instrument.  [Probate Code §21101].

There are some differences in the law with regard to will and trust contents, namely:

(1) The test for capacity to execute a trust differs in significant respects from the test for capacity to execute a will.
(2) Mistake may be a ground for setting aside a trust, but not a will.
(3) The testimony of a subscribing witness to a will is generally given more weight than the opinions of nonsubscribing witnesses.

Although trusts rarely have subscribing witnesses, the settlor's competency can be supported by testimony of subscribing witness to a contemporaneous pour-over will.

Does a Will Contest Involve a Jury Trial?

Although in the past it was possible to have a jury try factual issues raised in a will contest, will contests are no longer tried by jury.  Probate Code § 8252(b).
A trial judge is typically an experienced and sophisticated trier of fact. In a will contest, the trial judge should not and typically will not be attempting to reach a result favoring the party whom the trial judge believes is more worthy, deserving, or needful of the decedent's property. Nor will the judge, in a contest over who will administer the decedent's estate or trust, attempt to reach a result favoring the party whom the judge considers more deserving or qualified to conduct the administration.  Rather, the trial judge should and typically will be trying to reach a result giving effect to the decedent's intent, whether or not the trial judge believes the decedent's intention was unfair, unwise, whimsical, or inappropriate. Of course, a seemingly inappropriate provision in a challenged testamentary instrument may influence the trial judge's determination of any claim of incapacity, duress, fraud, or undue influence.

Why Do Most Will and Trust Contests Settle?

Most will contests settle, primarily because there are risks for each side in a contest that can be avoided by a settlement.  Also, because of an important psychological factor: The parties to the contest are usually dealing with "found money," that is, money or other property they themselves did not labor long and hard to accumulate. They often are willing to part with a portion of the money or property if that assures that they will receive another portion of it, and receive it sooner if the contest is settled.

What is the "Safe Harbor" for No Contest Clauses?

A no contest clause essentially says that if someone challenges the will, they will be disinherited.  However, there is a way to go to court and not be disinherited, under the so-called "Safe Harbor" rule.  A no contest clause will not be enforced against a beneficiary by reason of any of the following acts:

(1) successfully contesting the will—or a portion of the will—in which the no contest clause is contained. In re Baker's Estate (1917) 176 Cal. 430.
(2) initiating a proceeding to determine whether a particular act would constitute a contest, if that proceeding is strictly limited to the "safe harbor" provisions of the statutory framework of Probate Code, §§ 21320 to 21322; [Prob. Code, § 21320, subd. (b)]
(3) a contest brought with reasonable cause and limited to one or more of the following grounds: [Prob. Code, § 21306]

(a) forgery;
(b) revocation;
(c) an action to establish the invalidity of any transfer described in Probate Code, § 21350;
(d) a petition to remove a trustee under Probate Code § 15642, subd. (b)(6).

For purposes of Probate Code § 21306 "reasonable cause" is defined to mean "that the party filing the action, proceeding, contest, or objections has possession of facts that would cause a reasonable person to believe that the allegations and other factual contentions in the matter filed with the court may be proven or, if specifically so identified, are likely to be proven after a reasonable opportunity for further investigation or discover; [Probate Code § 21306(b)]

(4) a contest brought with probable cause to the extent it challenges a provision in a testamentary instrument that benefits [Probate Code, §21307]:

(a) a drafter or transcriber of the instrument;
(b) a person who gave directions to the drafter concerning substantive contents of the provision or who directed the drafter to include the no contest clause,but only if the testator did not affirmatively instruct the drafter to include the contents of the provision or the no contest clause; or
(c) a person who acted as a witness to the instrument;

(5) a contest to the extent it challenges a provision in an instrument
making a donative transfer to:

(a) an attorney, conservator, or other person having a fiduciary relationship with the transferor, who drafted or transcribed the instrument or caused it to be drafted or transcribed [Probate. Code, §21350, subd. (a)(4)]; or
(b) any person who has one or more of certain relationships specified in Probate Code, § 21350. [See Graham v. Lenzi (1995) 37 Cal. App. 4th 248].

What is Lack of Due Execution?

If the proponent—who has the burden of proof on this issue [Probate Code § 8252(a)!—is unable to prove that the will was executed with the formalities required by law, the will fails even in the absence of formal opposition to its probate. [In re Fletcher's Estate (1958) 50 Cal.2d 317].   The basic formalities for a witnessed will are due execution by the decedent and attestation by two disinterested witnesses. [Probate Code § 6110].  The basic formalities for a holographic (handwritten by the testator) will are signature by the decedent and material provisions in the decedent's handwriting. [Probate Code § 6111]. 

What is Undue Profit?

Often times one of the legal requirements for contesting a will or trust is that the instrument gives an "Undue Profit" to a beneficiary.  Undue profit refers to something unwarranted, excessive, inappropriate, unjustifiable or improper. The concept consists of both quantitative and qualitative aspects allowing the trier of fact to evaluate the relationship between the decedent on the one hand and the beneficiary and others on the other hand to determine whether the beneficiary is the more obvious object of the decedent's testamentary disposition.  [Estate of Sarabia (1990) 221 Cal.App.3d 599].

Does Fraud by a Beneficiary Invalidate a Will or Trust?

A will or trust procured by fraud can be challenged.  A will procured by fraud will not be admitted to probate. [Probate Code § 61041].

The elements of the fraud that will prevent a will from being admitted to probate are the same as those that can invalidate a contract. [In re Newhall's Estate (1923) 190 Cal. 709.; In re Benton's Estate (1901) 131 Cal. 472].

Actual fraud means an intention to deceive by [Civil Code § 15721]:

(1) the suggestion as fact of something not true by one not believing it to be true;
(2) the positive assertion of something not true made in a manner not warranted by the information possessed by the person making the assertion even if that person believes the assertion is true (negligent misrepresentation);
(3) the suppression of truth by someone having knowledge or belief of the truth;
(4) a promise made without any intention of performing the promise; or
(5) any other act meant to deceive.

Constructive fraud consists of any breach of duty that gains an advantage to a person or to anyone claiming under that person by misleading another to his or her prejudice. There need not be an actual fraudulent intent. [Civil Code § 1753(1)1].  Constructive fraud also consists of any act or omission the law declares to be fraudulent without respect to actual fraud. [Civil Code § 1573(2)1].

In order to invalidate the will, the testator's mistaken belief induced by the fraud must have existed at the moment of the execution of the will, although the fraud may have been practiced earlier. [In re Newhall's Estate (1923) 190 Cal. 709].

What is Duress or menace and Can it Invalidate a Will or Trust?

 Duress consists in [Civil Code § 1569]:

(1) unlawful confinement of the person of a party, or of the party's spouse, or of an ancestor, descendant, or adopted child of such party or spouse;
(2) unlawful detention of the property of such person; or
(3) confinement of such person lawful in form, but fraudulently obtained or fraudulently made unjustly harassing or oppressive.

Menace consists of a threat of duress, of unlawful and violent injury to a person or the person's property, or of injury to a person's character. [Civil. Code § 1570]

A will procured by duress or menace will is invalid. [See Probate. Code § 6104].  The laws is the same for Trusts.

What does it Mean When a Will or Trust is Revoked?

Revocation of a will or trust takes place when there is a subsequent instrument revoking the prior will or trust - or part of it - expressly or by inconsistency, or when the testator takes action to destroy, mutilate, or cancel the will or trust, with the intent to revoke. [Probate Code § 6120].  A will that has been revoked will not be admitted to probate. [In re Benson's Estate (1944) 62 Cal.App.2d 866].  A revoked trust is invalid.

If you need assistance with regard to a dispute involving a Will, Trust, Deed or Power of Attorney, please feel free to contact our firm.