Wills and trusts are the two basic types of estate planning documents. Although there are some differences between the two, both serve the same essential purpose: to allow a person to settle their affairs and determine what will happen to theirestate(that is, all of the assets in their possession) after they die. There are few matters more personal, or more sensitive, than estate planning. And that is why contesting the will or trust of a deceased loved one is so fraught with issues. Many beneficiaries feel that the inheritance was unfairly distributed, or that some major aspect has been poorly handled. Sometimes you must contest a will.
Generally,willsandtrusts– if they have been properly drafted – are strong documents. The law gives thedecedent(that is, the deceased person in an estate planning situation) a lot of power to decide what will happen to their estate. Contesting a will or trust will not be easy.
However, if you have reason to believe that a major error was made in the process, that a loved one's will or trust is not legitimate, or that it was corrupted by some external factor, thenyou may be able to contest the will or trust. In this article, we will help you figure out whether you have a case to contest the will or trust or a loved one, and what you should do.
Having Standing to Contest a Will or Trust
In determining whether you will be able to contest a will or trust, the first question to consider is whether you havelegal standingto do so.
Not just anyone can contest a will or trust. In order to have standing to sue, you must have some direct stake in the matter at hand – you must have something to gain (or lose). In other words, you must be an "interested person."
If you were named as a beneficiary in the will or trust, then you will generally have standing to contest the will or trust. But you will also have standingif youwouldhave inherited money had the will or trust never existed.
To understand what this means, we must look at the legal concept known asintestate succession. If someone dies without a will or trust, then their assets will go through a default probate process. They will be distributed to the decedent's spouse and children, or to other relatives if no spouse or children can be found.
If you are someone who stood to inherit under intestate succession, then you will be able to contest the will or trust, regardless of whether or not you were mentioned in it.
Also,if you were mentioned in apreviousestate plan written by the decedent, orif you are a creditor of the estate, you will likely still be considered an interested party, and have standing to contest the will or trust.
How Much Time Do I Have to Contest?
In contesting the will or trust of a decedent,timing is crucial, and the sooner the better.
Although the general timeframe for contesting both wills and trusts is similar, the specifics will vary depending on the type of document.
For a will, there will be a hearing in probate court to determine whether the will is valid. After this hearing, the will may be either accepted or rejected. It is best to contest the willbeforeit is accepted by the court. However, if a will has been accepted, you will still have 120 days to contest it.
For a trust, the trustee is required to give notice to all of the trust's beneficiaries after the trust settlor has died. Once that notice has been given, you have 120 days to contest the trust. Youmayin some cases be able to get an extension of 60 days if the trustee did not send you a copy of the trust, but this is less common.
In either case, you have very little time to waste! If you plan to contest a will or trust, then you should begin the process as soon as possible.
Grounds for Contesting a Will or Trust
As we mentioned, the majority of wills and trusts can't legally be contested. The testator of a will, or the settlor of a trust, has a lot of power to distribute their assets how they see fit. That includes the power to do things like giving you a smaller share of the estate than your siblings, or other choices you might legitimately consider unfair.
However,youdohave grounds to contest the will or trustif it is invalid. There are a few different ways this can happen.
The decedent lacked testamentary capacity.
When a person drafts a will or trust, they must be of sound mental capacity.
Many elderly people unfortunately suffer from dementia, and this can severely impair their ability to make sound decisions. Other mental illnesses, as well as conditions like substance abuse, can have a similar impact.
In any case, the person signing a will or trust must be aware of the nature of the document they are signing and the consequences of doing so. If they did not have that awareness at the time it was signed, then you can contest the will or trust.
Timing matters here: if a person developed a condition such as dementia, then their will or trust may still be valid,as long asthat document was signed before they fell ill. If another will or trust was drafted after the illness, then the earlier document will take precedence over the later one (which is an exception to the general rule for such things, as we explain below).
You must also be 18 years of age to write a valid will or trust in California.
The decedent was subject to undue influence.
If someone signed a will or trust because they were coerced into doing so, then that will or trust is not valid.
It is a sad fact that elder abuse is very common in our society, and some of this abuse can be financial in nature. However, non-elders can also be subject to various forms of undue influence. These can include physical abuse, threats, blackmail, unlawful imprisonment, and even emotional abuse or the withholding of affection.
Undue influence may be exerted by someone in a position of power over the decedent, such as a caretaker, but it may also be exerted by an equal, such as a spouse or child. It often occurs with a new spouse or romantic partner, who may try to manipulate their spouse's will or trust so as to disinherit the children from a first marriage.
The will or trust was not put through the proper legal protocol.
In order for a will to be valid in California, it must be a written document, generally typed (whether on a computer or a typewriter). It also must have been signed in the presence of two witnesses, who must also sign the document.
California law does allow for "holographic wills" to be accepted under certain circumstances. Holographic wills are handwritten rather than typed, and may not be signed in the presence of witnesses. They are usually written by someone who is very close to death and has no time to go through the legal formalities. However, a holographic will is generally weaker than an ordinary will, and if you plan on contesting it, your chances of succeeding will be stronger.
A trust does not need to be signed in the presence of witnesses. In order to be valid, it generally only needs a written agreement that specifies the property to be placed into the trust, as well as the settlor, trustee, and beneficiaries. However, ambiguities or inaccuracies in the document may be grounds for contesting the trust. The same goes for a will.
There was forgery or fraud involved in the drafting of the will or trust.
If a will or trust, or part of one, was forged, then you have the right to challenge the will or trust.
Forgery is unfortunately quite common in estate planning, and it can also be hard to prove, as some forgers are very clever. You may have to closely analyze the decedent's handwriting to determine whether their signature was copied or their hand was moved by another party.
Even if a will or trust itself was not forged, it may be considered fraudulent if it was drafted under false pretenses. Someone might trick a decedent into believing that they are signing something other than a will or trust, or tell them something untrue in order to get them to change the estate planning document.
This, too, can be difficult to prove, so you will have to marshal your facts very carefully before making a legal claim of forgery or fraud.
There is another will or trust that was drafted at a later date.
If someone writes a new will or trust, then this generally revokes any older wills or trusts which they have written. The same goes for amendments and modifications added to the will or trust later on.
Generally speaking, the later a document was written, the stronger it is – at least, in estate planning. Therefore, one of the best ways to challenge a will or trust is to present the court with a new document written after the one which is currently under consideration.
Of course, the new will or trust, if it is to be valid, must meet all the same requirements as the old one. It must be a legitimate document written by the actual decedent, and they must have had testamentary capacity and not have been subject to undue influence.
The No-Contest Clause
Before challenging a will or trust, you should know whether the document has ano-contest clause.
These clauses are placed in wills and trusts by decedents who do not want their beneficiaries challenging their estate plans. They stipulate that if someone challenges the will or trust, and fails, then they will be completely disinherited and receive nothing.
If there is a no-contest clause, then you should think very carefully before mounting a legal challenge to a will or trust. This makes the process of contesting the will or trust an all-or-nothing game.
As Ralph Waldo Emerson said, "When you strike at a king, you must kill him." The same general logic applies to no-contest clauses. If this is your situation, then it is important to have all your ducks in a row before contesting the will or trust, which is why proper legal representation is so crucial.
Understanding the Process
The first thing you should do, if you are planning to challenge a will or trust, is tohire an attorney.
The probate court system is difficult to navigate without significant legal experience. What's more, you can be relatively certain that if you challenge the will or trust, the other parties involved will lawyer up, placing you at a disadvantage. If nothing else, a consultation with an attorney can help you clarify your options and figure out how strong your case is.
The next step will be tofile a petitionin court contesting the will or trust. This must typically be done in the county where the decedent lived.
Once the petition is filed, you and your attorney will begin tocollect evidence. As we alluded to above, this can be a very involved process, because elements like fraud or elder abuse can take a lot to prove. To make matters even more complicated, the burden of proof is on you, as the party contesting the will or trust.
Inprobate court, the case will usually be decided unilaterally by a judge, without a jury present. This makes presenting yourself, and the facts of the case, all the more paramount. However, most cases of contested wills and trusts do not go all the way to a court hearing. They can be resolved by asettlementbetween the parties, or else throughmediation.
Generally, in cases where a will or trust is being contested, it is best totry and wrap things up quickly. These are complex situations involving grief and a lot of other strong feelings, and battles that drag on for years can be a detriment to all involved. In certain cases, however, the only just option will be to take the case all the way to court.
The Bottom Line
Contesting a will or trust is no easy process, but with the right resources, it can be manageable.
If you are considering whether to contest a will, trust, or other estate planning document, then give us a call today to schedule a free consultation. We will help walk you through your legal options and figure out what the appropriate next steps might be. Remember – whatever your final decision, you have nothing to lose by exploring all possibilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
