You can contest a will in California based on the way it was created or executed, and based on the circumstances under which the will was made. In terms of legal formalities, wills are required to be signed by the person making the will, as well as two witnesses. In the case of a holographic (handwritten) will, the only signature required is of the person making it. A will may be successfully challenged based on the lack of any of these formalities.
Reasons to Contest a Will in California:
Wills may also be contested on the basis of the following reasons or grounds:
- Lack of testamentary intent or capacity – challenging the deceased person’s mental state when the will was made.
- Undue influence – claiming that there was an improper influence, usually from another person, in the drafting of the will.
- Fraud – challenging the will because it was made as a result of fraud on the deceased.
- Duress – claiming that the deceased was unlawfully confined or detained when making the will.
- Mistake – challenging a will by claiming a mistake when the will was made caused it to be invalid, or caused the person contesting to fail to receive something the deceased intended him or her to get.
- Revocation – challenging a will by claiming that the will was voided, or cancelled out by a later will or similar document.
Only interested parties can contest a will in California. This is usually people who would have benefitted under an earlier will, or other heirs who are not in the current will. A person contesting a will can file an objection with the court to stop the probate of the will. Once this happens, the following people have to be informed of the contest; the heirs of the deceased person who are known, and each person named in the will, the executor, and alternate executors. These people then have 30 days to respond to the contest. During the hearing on the contest, the person contesting the will has to give evidence proving the grounds on which the contest is based. If the people benefiting from the contested will are given notice of the contest and do not respond within the 30 days, the case may go ahead without them, and they will be bound by the ruling in the case. At the end of a hearing on a will contest, a judge may accept or reject part or all the contested will. Note that spouses who write wills can only devise their interest in property. Because California is a community property state, a spouse cannot devise or give away all the property acquired after marriage and leave the other spouse with nothing. Any property acquired after marriage is likely to be considered community property in which the spouses have 50/50 rights. If a spouse in a community property state tries to disinherit a spouse, the spouse may still get their community property share by law.
If you are interested in drafting your will without a lawyer, you can handwrite one yourself, you can use the statutory form provided under California law, or you can have a custom will professionally prepared. For help preparing a will, living trust or other estate planning documents, contact A People’s Choice for affordable, non-attorney assistance.