The unfortunate reality is that will contests and trust disputes are quite common in probate. Despite everyone having the best intentions and to remain civil after the death of a family member, the likelihood that someone may contest a will is still pretty high. If a family member disagrees with how estate property is being distributed, the likely result is probate litigation. That means someone who has an interest in the estate can bring their disagreement to the court to be resolved. A common question that many clients have is – how long after probate can someone contest a will? Let our Los Angeles probate attorneys explain everything you need to know.
How long do you have to contest a will?
The amount of time you may have to contest a will depends on how far along the probate procedures are. If the person has just passed away, then you can contest a will by filing an objection to the probate petition. This must be done before the hearing takes place. If that time has passed and the court has already accepted the will as valid, then you have 120 days from the date of the hearing to file a petition with the court to have the will revoked.
Some of the most common reasons someone may contest a will
There are four basic legal grounds to contest a will: (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 and contesting a will can be quite expensive. Nevertheless, that rarely discourages people from doing so.
A will can be contested when there are problems with the 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.
The lack of testamentary capacity may cause a will to be 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 goes on to list 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. For this reason, it is important to discuss your situation with your estate planning attorney.
Contested wills can be the result of a suspicion of undue influence or coercion
Unfortunately, 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. Sadly, 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 will procured by fraud can be contested
Deception is a common reason to contest a will. 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 instance, 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.
Creating a self-proven can help to avoid contested wills
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.
Join us for a free seminar 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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