Despite the best intentions, many families have a difficult time being civil with one another after the death of a family member. For this reason, will contests and trust disputes are more common than you might think. When relatives disagree with how estate property is being distributed probate litigation is the likely result. Probate litigation is simply the proceeding that results when someone who has an interest in the estate property takes their dispute to the probate court to resolve. This article will discuss some of the most common issues that lead to Long Beach probate litigation and one way you may be able to avoid it if you plan ahead.
The Four Most Common Reasons the Last Will and Testament is Contested
There are essentially four legal bases for challenging the validity of a last will and testament: (1) it was not signed properly, (2) there is a question about testamentary capacity, (3) there is a suspicion of undue influence in executing the will, and (4) the testator was fraudulently induced into creating the will or including certain provisions. Each of these grounds can be difficult to prove. Contesting a will can also be a very expensive court process. Still, Long Beach probate disputes are not uncommon.
Long Beach Probate Litigation When There are Issues with Signatures
In California, a Will must be in writing, signed by the testator and two witnesses. If the testator cannot physically sign his name he may instruct someone to do it for him. However, that person may not be counted as one of the two required witnesses. Each witness must either observe the testator sign the Will or be told by the testator that the signature on the Will is his. The witness must also understand that the document is the testator’s Will, and then sign the Will in the presence of the testator and the other witness.
Lack of Testamentary Capacity can Make a Will Invalid
A Will is not valid if it was executed while the testator lacked the required testamentary capacity. Under California law, an incapacitated person is defined as follows:
[a] person is of unsound mind or lacks the capacity to make a decision or do a certain act when there is a deficit in at least one of the following mental functions and the deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the act or decision in question.
The statute also lists several mental functions relating to alertness and attention, information processing, thought processes, and the ability to modulate mood and affect. Capacity can be a complicated concept in some states. That’s why it is important to discuss your situation with your estate planning attorney.
Long Beach Probate Litigation Based on Undue Influence or Coercion
There are situations where it is suspected that undue influence or coercion have been used to coerce a testator into either creating the Will or including certain provisions in the Will. This is a little different from fraud. Basically, there is evidence that the testator was likely emotionally vulnerable in some way and someone took advantage of that vulnerability. Unfortunately, it is not uncommon for seniors whose mental faculties have declined to be exploited by someone close to them. However, proving undue influence or coercion can be difficult.
A Last Will and Testament Obtained Through fraud can be Challenged
Deception is a prevalent issue regarding contested wills. A Will can be challenged when there is evidence that the testator may have been tricked into signing the Will or defrauded into including terms in the will that the testator did not intend. For example, a testator may be given a document that is represented to them as something entirely different, when in fact it is a Will. The difficulty with proving fraud is that the essential witness, the testator, is no longer available to testify. This is where the witnesses to the Will become extremely important.
A Self-Proving Will Can Reduce Probate Disputes and Litigation
One way to ensure that your family will not be caught up in a legal battle after your death, at least regarding the validity of your will is to create a “self-proving” Will. This type of Will, which is recognized in California, essentially takes the guesswork out of Will authenticity. You basically sign your Will in the presence of a notary, and your witnesses must do the same. Also, you and your witnesses will sign notarized affidavits that establish who you are and confirm that each of you knew you were signing a will. Those affidavits are kept as separate documents.
Download a FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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