If you recently experienced the death of a parent, you are undoubtedly going through an extremely emotional time period. Making decisions when you are highly emotional is not usually a wise idea; however, there are a number of practical and legal decisions that often must be made shortly after the death of a loved one. You may, for example, be thinking about contesting your parent’s Last Will and Testament. Such an important decision should never be made without first consulting with an experienced attorney. A Baldwin Hills probate attorney at Collins Law Firm, however, explains what a Will contest entails and offers some factors to consider when deciding whether to pursue a Will contest.
How Does a Will Contest Work?
When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate. Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. The probate process is typically initiated by the person named as the Executor in the decedent’s Will, if one was left behind. Another function of the probate court is to authenticate the Will submitted for probate. In California, a Will contest can be filed before a petition to probate the estate has been filed or prior to a hearing on the petition if it has already been filed. It is best to contest the Will early on; however, if the hearing has already occurred and the court accepted the Will, you can still challenge the Will. You only have 120 days from the date of acceptance to file your petition contesting the Will in that case.
Factors to Consider When Considering a Will Contest
If there is something about your parent’s Will that bothers you, it can be easy to jump to the conclusion that contesting the Will is the correct course of action. It is imperative that you separate your emotional reaction to the terms of the Will from any legitimate concerns you have about the validity of the Will itself. You cannot challenge a Will simply because you are unhappy with the terms of that Will. Instead, you must ultimately prove legal grounds on which the Will can be declared invalid. In California, the following are legal grounds on which you may base a Will contest:
- Lack of testamentary capacity – challenging the Testator’s mental state when the Will was executed.
- Undue influence – claiming that someone exerted an improper influence on the Testator during the drafting of the will.
- Fraud – challenging the Will because it was made as a result of fraud on the Testator.
- Duress – claiming that the Testator was unlawfully confined or detained when making the will.
- Mistake – challenging a Will by claiming that a mistake when the Will was made caused it to be invalid, or caused the contestant to fail to receive something the Testator intended him or her to get.
- Revocation – claiming that the Will was voided, or cancelled out by a later Will or similar document.
Contestants in a Will contest frequently claim “lack of testamentary capacity” as the grounds on which they base their challenge, particularly if the decedent was a senior at the time of death. Proving that a Testator lacked testamentary capacity is often much more difficult than it sounds though. The law considers a Testator to have the requisite capacity if, at the time the Will was executed, he/she:
- What property he/she actually owns;
- The natural objects of his/her bounty (his/her relatives and descendants);
- What a Will is and how he/she is disposing of his/her property;
- The overall scheme of disposing of his/her property.
Even a senior who was suffering from the early stages of dementia may have had sufficient capacity at the time the Will was signed. Before you decide to proceed with a Will contest it is in your best interest to consult with an experienced probate attorney about the strength of the grounds on which you plan to contest the Will. Given the financial and emotional cost involved in contesting a Will, you should be reasonably certain that you have a good chance of being able to prove one of these grounds before deciding to move forward.
Contact a Baldwin Hills Probate Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions related to contesting a Last Will and Testament, consult with an experienced probate attorney near you. Contact the Collins Law Firm by calling (310) 677-9787 to register for one of our FREE estate planning workshops.