Trust and Will Contest
There are many reasons why a party may object to and contest to the validity of a will or a trust. Where a court finds that the will is invalid because a beneficiary took advantage of an elderly person the courts could impost severe financial penalties upon the wrongdoer. If you are suspicious about the validity of a trust or will, call for an immediate case evaluation.
The following are reasons to contest the validity of a will or a trust:
- The will or trust was not properly executed in compliance with the legal requirements;
- When creating a will or a trust, a person must have sufficient mental capacity;
- Elder financial abuse, undue influence, fraud, menace, and duress are used to take advantage of the elderly population;
- The will or trust was forged;
- There was a mistake in the terms will or trust
- The will was revoked.
1. The will or trust was not properly executed in compliance with the legal requirements.
Sometimes a person will create a will thinking that it will hold up after their passing. The California law has very specific requirements as to what constitutes a valid, legally enforceable will. (See California Probate Code 6110).
- A will generally requires the signature of two witnesses;
- A handwritten or holographic will must be written in the decedent’s own handwriting; and
- A person must have sufficient mental capacity when creating their will or trust.
- A document offered as a will must express present intent to leave estate to someone else upon death.
2. When creating a will or a trust, a person must have sufficient mental capacity.
Unfortunately, elderly people are easily taken advantage of by caretakers and other close family members while the elderly person is battling Alzheimer’s and dementia. During this time period the elderly are asked to sign a will or trust that does not reflect their intent during the time they did not suffer from mental incapacity.
To prove the decedent lacked mental capacity the decedent’s medical records have to be obtained and reviewed by a medical expert such as a neuropsychologist.
3. Elder financial abuse, undue influence, fraud, menace, and duress are common methods used to take advantage of the elderly population.
Elder Financial abuse occurs when a person takes, hides, appropriates, retains property of someone 65 years of age or older for the wrongful use or intent to defraud or by undue influence. Where this is proven in court, the court will likely void the will or trust and apply strict penalties against the wrongdoer.
Unfortunately, often the acts of the abuser are not known until after the passing of the person who was taken advantage of. Gokal Law Group, Inc. takes great pride in prosecuting elder financial abuse claims.
4. Wills are sometimes forged steal money from a decedent’s estate.
A qualified forensic handwriting expert can detect and prove that a will is forged. If forgery is suspected, it is important to secure as many handwriting samples as possible. Because a person’s writing can change over time, handwriting samples from the time the will was signed are preferred.
5. A will or a trust can contain a mistake or typographical error that does not accurately reflect the decedent’s intent.
6. A will or trust contest sometimes challenges the validity of the trust on the grounds that it was revoked.
In California, a will can be totally revoked in the following two methods:
- A subsequent will instrument that revokes the earlier will or part of the earlier will either expressly or by inconsistency. (California Probate Code 6120(a)); or
- By mutilation or destruction of the will with the intent and for the purpose of revoking it, by the testator or another person in the testator’s presence and at the testator’s direction. (California Probate Code 6120(b)).
Contact one of the attorneys at Gokal Law Group, Inc. at (949) 753-9100 if you need help with a Trust or Probate issue.