3 Reasons to Contest a Will

February 20, 2019

Elderly hands in a lap

Elderly hands in a lap If you’ve had a loved one pass away recently, there are likely many thoughts and emotions going through your head. If you have been left out of their Trust or Will, (in this blog we use the term “Will” but the concepts apply to both a Will and a Trust) it can really make the whole experience far more painful and confusing. When people learn that they aren’t listed in the Will of a loved one, they often think that they can, and should, contest the Will.

Ultimately receiving a distribution from a Will or Trust is a gift from that person, and they can give that gift to whoever they choose. The fact is that simply being unhappy with your loved one’s decision isn’t a valid reason to contest. That being said, however, if you are named in a Will or Trust and did not get what you thought you were supposed to or you were disinherited entirely, there are some strong legal reasons why you should hire trust and estate expert attorneys to review the situation and advise you whether you may have a valid case to contest the Will, challenge a decision of the Executor, or the Trustee. Read this blog to see if your situation fits into one of these scenarios.

Excessive Influence and/or Fraud

If you believe that another member of the family, a friend, or a caretaker exercised undue influence on your loved one and convinced them to change their Will, this is a strong reason to contest. This most often happens when one family member is spending significantly more time with the aging loved one and is able to manipulate them into making the Will to benefit them as they see fit. The person doing the influencing may not even realize that what they are doing is wrong. If you suspect this is the case, you will want to contest the Will right away.

Formality Problems

If there is a failure of formality of a Will, it means that certain requirements haven’t been met. For example, Wills typically need to be in writing, have at least two witnesses, and be signed by the person making the Will. Those two witnesses shouldn’t be beneficiaries of the Will. Handwritten documents might meet the definition of a Will, if they are in the signor’s handwriting and it is signed. When people write their own Will, it is very likely they will write something that is ambiguous or conflicting as to at least a portion of the Will. So, if there was a problem with how the Will was created and managed, or a portion of it, that can be a valid reason to contest.

Capacity Issues

This is one of the most common reasons why a Will is contested. If the person’s decision making ability and capacity to understand was not good enough when they made the Will, or the amendment to the Will, that Will or amendment can be challenged. This happens when a loved one is diagnosed with and experiences symptoms of cognitive impairment such as dementia, Alzheimers, stroke, etc. and then after that is documented, they still make a new Will or amendment to their Will and change beneficiaries. If you believe that your loved one’s Will was created or updated at a time when you can demonstrate that they were unable to make these types of legal decisions, you will have a strong case for contesting the Will.

What about the “No Contest” clause?

While these are three of the most common reasons why a Will or Trust can be contested, and they typically result in the strongest cases, they aren’t the only ones. Every situation is unique, and if you think that there is a problem with the Will or Trust or the actions of the Executor or Trustee, you should always consult with an expert trust and estate attorney. They will be able to review the case and let you know if your case would have any chance at prevailing in Court. Contesting a Will or Trust is a serious thing because it often must be started very quickly after the person dies and can have serious consequences due to the effect of “No Contest” clauses in the Will or Trust.

We are Fresno and Clovis trust and estates attorneys. We represent beneficiaries of Wills and Trusts in probate court in California, when they are disinherited, or the Executor or Trustee is not following the terms of the Will or Trust, or the Executor or Trustee is not responding or promptly distributing the Will or Trust or when we need to challenge their account or accounting of the financial decisions they made while acting as Executor or Trustee.

If you would like to understand your situation better, or see a list of California counties we frequently serve, please contact us to schedule a consultation so we can help you right away.