Posts Tagged ‘Will Contests’
September 21st, 2009 | 
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A will contest challenges the validity of the testator’s (will signer) intent and seeks to set aside the document or some of its terms. This article describes some of the grounds to bring a successful challenge.
In California, a will contest begins after a will is submitted to the probate court. An “executor” or “personal representative” will request that the court confirm the validity of the will, and then grant permission to distribute the decedent’s estate according to the document’s terms.
A person that was disinherited, completely omitted, or left a smaller amount than expected, can challenge the will on a number of grounds:
Undue influence. This is perhaps the most common element that can be shown to contest a will. An elder with substantial signs of dementia (long and short term memory loss) can become quite vulnerable to improper suggestions and manipulation. In essence, undue influence means taking advantage of another person’s weaker state of mind.
Coercion. This is another form of wrongful manipulation, and similar to “menace”. It involves using threats or intimidation to badger one’s desires and wishes into submission. Wrongfully imposing one’s own wants onto another.
Fraud. This intentional act requires the abuser to have misrepresented a material fact to the victim. The victim must have relied upon the fact, taken action against (what would otherwise have been) his or her better judgment, and caused damage to himself or another.
Duress. This is similar to taking advantage of another’s weaker state of mind, but generally applies to a psychological problem brought on by a specific set of circumstances (the recent death of a loved one, pending medical emergency, etc.). It involves the exploitation of the victim’s stressful mindset.
Mistake. Often, the testator simply made a mistake. For example, inadvertently forgetting to mention one of her seven children (with whom a loving relationship had always existed). The elder law attorney who drafted the will may have made a mistake and went unnoticed when reviewed by the client.
These are some of the ways that a will contest can occur.