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WILL CONTESTS: THE BASICS
INTRODUCTION:
Long a subject of soap operas and
movies, contesting a Will is a much more detailed and difficult process
than most people envision. Courts seek to uphold the validity of Wills
whenever possible since the deceased person’s wishes are highly
regarded by the Court and the Court will only invalidate the Will if the
contestant’s evidence is powerful, indeed.
Further, the results of invalidating
a Will may be very different than that envisioned by the contestant.
Particularly dangerous is encountering a “No Contest” clause
in a Will which, essentially, automatically disinherits anyone who seeks
to invalidate a Will. Assuming the Will survives the contest, the
contestant may have lost the right to inherit anything under that Will!
While such clauses are invalid as to various classes of persons and various
types of “challenges” to the Will, they have become standard
in most Wills and the wise litigant will be most careful in determining
the law before leaping into Court.
This article shall briefly describe
the basic law and procedures for Will Contests but the reader is advised
strongly to obtain competent legal advice before filing any documents
with the Court. A separate article on this web site will discuss No
Contest clauses in Wills and the effect on the cost benefit analysis of
contesting a Will.
GROUNDS
FOR INVALIDATING A WILL
a.
Who Can Challenge?
Put simply, a Will contest is an
effort to invalidate a writing, namely the instrument which has been
submitted to the Probate Court purporting to be the Last Will and
Testament of a now deceased person.
Any “interested” person
may contest a Will, including a heir, devisee, child, spouse, creditor,
beneficiary or other person having any property right in or claim against
the decedent’s estate that could be affected by the probate proceeding.
(Probate Code Section 48 (hereafter “PC”)).
The “executor” is a
person nominated in the Will to be in charge of the probate of the Will.
Note that a named executor in the Will who will not inherit does not have standing to bring a Will
contest. For the general ways a Will works, see our article on
Wills and Trusts.
It is vital to note that once a Will
is admitted to Probate by the Court, while it may still be contested it
is much more difficult and the standing to challenge it is further
restricted. It is always preferable for the contestant to challenge the
Will prior to it being admitted to probate and, conversely, if you are
defending a Will, it is better for you to have the Will admitted to
probate as soon as possible and hope the contestants wait until you are
successful.
b.
Grounds for the Challenge
The execution or revocation of a Will
or any part of a will is ineffective to the extent that the execution or
revocation was procured by DURESS,
MENACE, FRAUD OR UNDUE INFLUENCE (PC 6104). Further, the validity of
a Will depends on issues such as competence
to make a Will, compliance with execution requirements and revocation
and revival of a Will (PC 6100-6124.)
1.
Validity and Execution of a Will.
Any individual eighteen years of age
or more who is of sound mind may make a Will. (PC 6100 (a)).
A person is not mentally competent to make a Will if, at the time of
making the will, either of the following is true (PC6100.5 (a)):
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He or she does not have sufficient mental
capacity to understand the nature of the testamentary act, or
understand and recollect the nature and situation of his or her property or remember and
understand his or her relations
to living descendants, spouse, and parents and those whose interest
are affected by the Will, or
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He or she suffers from a mental disorder with
symptoms including delusions or hallucinations which delusions or hallucinations result in
the person’s devising property in a way that, except for the
existence of the delusions or hallucinations, he or she would not
have done.
Misreading or misinterpretation of
the above criteria has lead far too many to challenge Wills. The Courts
do uphold Wills if they can, and if the delusions or hallucinations did
not result in the Will being directly affected by such delusions, the
Will will stand. Goodman v
Zimmerman (1994) 25 Cal. App. 4,
1667. Even a person subject to a conservator ship is not necessarily
incapable of making a Will. (PC 1871 c.) One of the writer’s
favorite cases involved a man who spoke to mail boxes on a regular basis
but was found entirely competent to write his Will since he knew what he
owned, who his relatives were and who he wanted to inherit. The Court
concluded that speaking to mailboxes did not affect the testator’s
ability to write an appropriate Will!
A Will must be in writing, signed by
the testator (or someone acting in the testators’ name and presence
and by the testator’s direction) and witnessed by being signed by
at least two persons, each of whom, being present at the same time,
witnessed either the signing of the Will or the testator’s
acknowledgement of the signature or the Will and understand that the
instrument they sign is the testator’s Will. (PC 6110.)
A Will that does not comply with the
above requirements may still be valid as a holographic will, whether or
not witnessed, IF the signature and the material provisions are in the
handwriting of the testator. (PC 6111 a).
It should be noted that the
relatively new PC 21350 generally invalidates provisions in Wills, Trusts
and other instruments that purports to make gifts to any of the following
persons:
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The person who drafted the instrument.
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A person who is related by blood or marriage to
or is a cohabitant with or employee of the person who drafted the
instrument.
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Any partner or shareholder of any law partnership
or law corporation in which a person described in the first category
above has an ownership interest and any employee of any such law
partnership or law corporation.
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Any person who has a fiduciary relationship with
the transfer, including a conservator or Trustee, who transcribes
the instrument or causes it to be transcribed.
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A person who is related by blood or marriage to
or is a cohabitant with or employee of a person described in the
category immediately above.
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A care custodian of a dependent adult.
The Courts have extensively
interpreted the above provisions and advice should be sought if you fall
into any of the above categories. For instance, a conservator was held
not to have “caused a will and trust to be transcribed for purposes
of this rule” when he had called an estate planning company to meet
with the conservatee, brought the company’s agent to the
conservatee’s house, and wrote a check from the conservatee’s
funds for the Will and Trust. Estate of Swetmann (2000) 85 Cal. App. 4th
807.
And there are exceptions to the above
restrictions on transfer. The transfer is not invalidated if
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The transferor is related by blood or marriage
to, or is a cohabitant with the transferee or the person who drafted
the instrument;
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The instrument is reviewed by an independent
attorney who counsels the transferor about the nature of the
intended transfer and signed and delivers a CERTIFICATE OF
INDEPENDENT REVIEW in the form described in PC 21351 b;
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After full disclosure of the relationships of the
persons involved, the Court approves the instrument by order under PC 2580
(substitutes its own judgment as to the validity of the transfer);
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The transferee is a federal, state or local
public entity or 501 C 3 charity.
And there are yet more
exceptions…
To contest the validity of the Will
the contestant must move quickly if the grounds are advanced under PC 21350.
If the transfer contested is by Will, the contest must be filed before an
order for final distribution is made. If the transfer contested is made
by some instrument other than a Will, it must be commenced within the
later of three years after the transfer becomes irrevocable or three years
from the date the person bringing the action discovers or reasonably
should have discovered the facts material to the transfer. (PC 21356b).
It
is vital to get professional advice in writing your Will or seeking to
invalidate a Will: do not let the basic outline above substitute for
seeking legal guidance in this area: this article is directed to those
wishing to know the basics of
contesting the validity of a Will.
2. Undue
Influence as Grounds to Invalidate a Will.
Undue influence is NOT merely being
influential on the testator. “Mere general influence is not enough
to invalidate a Will for undue influence.” Estate of Callahan
(1967) 67 Cal App 4th
609.
Undue influence is influence that
destroys testator’s free agency and substitutes agency of some
other person; proof of undue influence requires proof of pressure that
overpowered testator’s mind and bore down on testator’s
volition. Hagen v
Hickenbottom (1995) 41 Cal App 4th
168.
Undue influence arises only if all of
the following elements are shown: (1) existence of a confidential
relationship between testator and person alleged to have exercised undue
influence; (2) active participation by that person in actual preparation
or execution of the Will, that conduct not being merely incidental in
nature and (3) undue profit accruing to that person by virtue of the
Will. Estate of Sarabua
(1990) 221 Cal App 3d 599.
3.
Duress, Fraud, Menace
These claims are also grounds to
invalidate a Will and are often mixed in with undue influence, described
above. They are what they sound to be: use of force or threats to compel
someone to write a Will in a specific way: in short, while undue
influence uses undue persuasion, duress, fraud and menace use various
types of threats to accomplish the same ends.
2. PROCEDURE TO INVALIDATE A WILL
The contestant files a special
pleading in the Probate Court to disprove the will. It is a special
proceeding created by statute and unknown in the common law.
Quite often there is dispute as to
whether a particular pleading is a Will contest since quite often the
contestant does not want the pleading so labeled in an effort to avoid
the No Contest provisions in a Will. The very question of whether a
pleading is a contest is often a matter of complex and prolonged law and
motion.
An interested person may contest a
Will by objecting to a petition for probate. The objection must be in
writing, verified, and filed at or before the hearing on the petition.
If a Will contestant objects to
probate of a Will, a summons is issued and served on each heir of the
decedent as well as the executor. Notice must be provided to all affected
persons, and service of the summons is the same as in any civil suit.
An answer is filed; there is pretrial
motions and discovery just as in any other civil action. See our article
on
The American System of Litigation. There is no right to a jury trial: the
Court is the trier of fact. The contestants have the burden of proof. (PC
8252a). Witnesses are called and cross examined just as at a civil trial
and the decision of the Court may be appealed.
CONCLUSION
A Will contest is an adversary pleading,
often expensive, often disruptive of family cohesion, but at times
vitally necessary to carry out the true wishes of a now deceased
relative. Such contests are by no means uncommon despite the No Contest
provisions discussed elsewhere on this web site and the key task of the
person considering one is to obtain good legal advice quickly and, if
appropriate, to file quickly since the longer one waits, the more
difficult the contest normally is.
If you are an executor or named
executor facing such a challenge, again speed is essential if you are to
minimize the chances of a contest. The fact is that the longer one waits
to file to probate the Will, the more likely it is that litigation will
ensue.
The burden is high to invalidate a
Will and the task should not be undertaken lightly. But the Courts are committed to determining
if the testator’s wishes are truly being fulfilled by the Will
submitted for probate and the challenge, while significant, is far from
impossible to meet.
Good, calm and considered advice not
only from attorneys but from other members of the family should be sought
before taking that step.
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