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Will Contests and the Law: An Old Problem With a Costly Procedure
September 1, 2019
Practitioners of estate planning and probate proceedings have long endeavored to keep their clients out of direct will or trust disputes, contests, or other proceedings whose nature it is to contest a will’s validity in a Court of law. However, over the years, attorneys have found that too many young families and elderly or disabled persons do not draft and effectuate adequate estate plans, resorting to spreadsheets or online forms which do nothing to distribute assets on the estate upon the death or incapacity of the drafter. This can lead to the formation of fundamentally flawed estate plans, which are easily contested by interested parties in Court, ranging from family members to potential creditors.
Probate, as it is commonly referred to, is the process by which a California Court determines the validity of a will or other legal document disposing of an estate and property within it, appoints a personal representative to manage that estate, and distributes the assets of the estate to the beneficiaries named in a will or other document. Where there is no will, the beneficiaries are determined by law, and more than usually do not reflect the wishes of the testator, or person making the will. Where there is a will, the beneficiaries are determined by the provisions in the will. However, where, in this process, a beneficiary or other interested party believes that the will should provide property to him or her, or allow him or her to administer the estate, they may file a lawsuit known commonly as a will contest.
Will contests may be filed before a will is admitted to probate (ie. before a judge determines that a will is valid under law) or after a will is admitted to probate in some circumstances. The person filing the contest is referred to as the “petitioner” and they typically seek a greater share of property of the estate, a particular item or property, or the power to administer the estate contrary to the terms of the will. The grounds provided under law for these contests attack either the entirety of the will, certain parts of it, or amendments to it, and are based on allegations that the person who made the will did so under duress, undue influence, menace, without the required mental capacity according to law, did not follow the proper procedure to execute the will (witnesses, executed by testator, etc.), did not have the intent to make a will, or the will has been revoked. These types of lawsuits over the contents of a will can cost tens of thousands of dollars to litigate, involve lengthy discovery and court process, and are not entitled to trial by jury, rather a judge will make the decision as to the outcome of the case and the distribution of the estate.
In my practice, I see these kinds of cases in situations where a will has been badly drafted, uses online forms or other invalid documents, and with an estate plan that is not comprehensive in nature, ie. does not include a trust, will, power of attorney, and is not fully implemented as required by law. In these situations, because a will is invalid at first review, interested family members or creditors with an interest in invalidating the will have a significant incentive to file a contest and ask the Court to invalidate the will and award property in a manner different than what the drafter intended. Court costs, fees, time, and family anxiety and difficulty are all too common in these circumstances. As an estate planning and civil rights attorney, I can tell you that the easiest way to make sure your wishes or your property and your family are enacted in your plan is to seek advice from a qualified lawyer and to draft an appropriate estate plan for yourself and your loved ones. In order to save the time and expense of costly headaches to distribute property within the family, these are the necessary steps to plan for the future and avoid litigation in the state of California.