Can a will be challenged after a testator’s death?

Under  California Probate Code , it is possible to challenge and ultimately void or alter a will after the testator – the person that made the will – died.  It is important to note that while it is possible, it is uncommon for a will to be voided or altered after the testator’s passing. Probate courts assume a will to be valid and enforceable. Most wills go through probate unopposed, and even when challenged it is difficult to trump a testator’s last will and testament.

Who can contest a will? 

In order for an individual to challenge a will, that person must have some sort of legal right – or standing – to commence a legal action that questions the validity of the final testamentary document. For example, in California, a person can contest a will if that individual is named in the will, or was named in a former version of the decedent’s last will and testament. Also, individuals that would have inherited under  interstate rules  may also challenge a will.

Can you contest a will for any reason?

There must be a valid legal argument for someone to contest a will – a contesting individual cannot simply be a disgruntled child or spouse that is unhappy with his or her inheritance, or lack thereof.  Grounds for contesting a will include:

·      Fraud or forgery;

·      Not old enough – the will maker must be at least 18 years of age;

·      Lacks mental capacity – the will maker must be of “sound mind”;

·      Undue influence – this is when a person of trust persuades a vulnerable individual – often times senior citizens – to bequest some or all of the testator’s property to that “trustworthy” individual.

“Undue Influence” in the news 

Media reports remind us that these matters do exist in the “real world.” For example, the recent Seattle Times  story  about the legal battle that ensued when the children of Northwest Kidney Centers’ (the world’s first out-of-hospital dialysis program) founder – the late Dr. James Haviland – contested their father’s will. When he was in his mid-80s, Dr. Haviland, was widowed and remarried a woman 50 years his junior. After his marriage to his second wife, his final will was altered on several occasions, including on his deathbed. He died at the age of 96. His final will effectively cut out his four children and left everything to his second wife. The late doctor had signs of dementia and the children questioned his testamentary capacity. The court determined that his second wife had “undue influence” over his decisions and ultimately ruled in favor of the children.

California Estate Planning

In order to ensure your final wishes are carried out as you want, it is imperative to draft and frequently update your estate plan, including your will, with an experienced  California estate planning attorney. While not always feasible, in some instances letting interested parties know the contents of your last wishes avoids surprises.

The  Law Office of Mark Abell  is experienced in all estate planning aspects. We create and customize your estate plan to suit your needs. We are also able to assist you in updating your existing estate plan. If you want to discuss or have questions regarding your personal estate plan, contact our office today at 310-489-0707 or mark@trustabell.com.

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