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Grieving the loss of a loved one is a stressful and heartbreaking experience. Unfortunately, many families going through this experience are additionally saddled with the outcome of who has lawful ownership of the deceased’s property and assets. While you may be unhappy with the terms of a will, this does not necessarily mean you have grounds for contesting. However, there are situations where the legitimacy or fairness of the will can be brought into question.


Who Can Contest a Will?


According to California Law, only an interested party may challenge a will or a trust. This means the one contesting must lose or gain something depending on the results of the will or trust contest. This also include any of the person’s heirs, or creditors who may have been owed money by the descendant.


There are various statutory timelines that may apply. For example, once a trustee gives proper notice of trust administration required by California Probate Code Sec. 16061.7 an action to contest the trust may not be brought more than 120 days from the date this notification by the trustee is served or 60 days from the date on which a copy of the terms of the trust is delivered during that 120-day period, whichever is later. This means that time is limited to act.


Why Can a Will or Trust be Contested?


  1. If the testator (the person who created the will) was unduly influenced


Depending on the circumstances under which the will was made, the testator may have been more susceptible to the influence of others. If extreme acts of persuasion caused the testator to lose free will when determining their trustee, there may be grounds for contention. Age and mental capacity is often at issue.


  1. If the will was not executed in accordance with the law


There are clear California laws which state the circumstances under which all wills must be written and signed. This includes the presence of two witnesses, not included in the will. California Probate Code 6110 also states handwritten or holographic will must be written in the decedent’s own handwriting, and the document offered as a will must express present intent to leave the estate to someone else upon death. Our firm regularly works with forensic handwriting experts to prove validity of the handwriting.


  1. If the will or trust was procured by fraud


The testator must never be tricked into signing their will. If evidence can be shown that proves deception was prevalent or the testator was unaware of what they were signing, a will can be challenged.


  1. If the testator lacked the capacity to sign the will


Under California law, “[a] person is of unsound mind or lacks the capacity to make a decision or do a certain act when there is a deficit in at least one of the following mental functions and the deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the act or decision in question.”


Certain mental functions are required in order to be considered capable of signing a will. If the testator lacked these abilities at the time of signing, a challenge might be considered.


Will contention can be complicated and often difficult to prove in court. Abbas Gokal and the attorneys of Gokal Law Group have experience with these issues and can fight for your rights. Contact one of the attorneys at Gokal Law Group, Inc. at (949) 753-9100 if you need help with a Trust or Probate issue.