Catanese & Wells, A Law Corporation provides a quarterly newsletter to the California probate and trust professional community including lawyers, accountants, professional fiduciaries and insurance providers.
This issue of the Probate and Trust Legal Summary will address various legal claims that may be asserted to challenge a will. It also discusses the risks of doing so, should the challenge be denied by the court.
A will may be contested on one of several grounds, any one of which, if proven, is sufficient to invalidate the subject will. Grounds include – revocation, lack of capacity, fraud, menace, duress, undue influence, mistake, lack of due execution, forgery, “interested witness” disqualification and transfers which are presumed to be the product of fraud and undue influence. California Probate Code Sections 21360, 6110, and, 6111. In order for a will to be admitted into probate it must appear that the terms of the will, given the relevant facts and circumstances, show the testamentary intent of the person making the will. See Estate of Sargavak (1950) 35 C.2d 93, 95 (did the testator intend the will to create a disposition of property upon death?). The court may accept extrinsic evidence to determine whether a document is a valid will – formal or holographic. That means the court may consider the facts and circumstances surrounding the creation of the instrument and its execution. See Estate of Brenner (1999) 76 Cal. App.4th 1298, 1303. The court may also consider such evidence to show a lack of intent by the testator to have the document be deemed a will. The court is to determine the existence or lack thereof of a will on a case-by-case basis. See Estate of MacLeod (1988) 206 Cal. App.3d 1235.
However, the policy of the law is to allow courts to enforce a will to give effect to the decedent’s right to dispose of property as he or she chooses. See Estate of Fritschi (1963) 60 Cal.2d 367, 372-373. So, if one wants to challenge a will it is important that admissible evidence be shown to the court to explain why the will should be rejected by the court.
Once a will is admitted into probate a party seeking to set aside the will has 120 days to file a petition with the court to do so. See California Probate Code Section 8270(a); see also Estate of Horn (1990) 219 Ca. App.3d 67, 73. Generally, after the 120-day period has run the will is deemed conclusively valid. See California Probate Code Section 8226(a).
Another risk of challenging a will (if one has received some degree of a devise) is the risk of losing what the will did leave to the person challenging the will. In other words, if a person did receive a gift under the suspect will, if the will contains a no-contest clause (in terrorem) should the will contest be unsuccessful the gift may be forfeit. (This area is very complex. A new statute became effective in California in 2010. Under the new law a direct contest of a will brought without probable cause will be deemed sufficient to trigger the no-contest clause of a will and its forfeiture provision. See Donkin v. Donkin (2013) 58 Cal.4th 412, 422-427.)
To conclude, there will be occasions where a will should be contested, but the person who makes the decision to challenge the will should be careful to accumulate the type of evidence to confirm the existence of a basis for the court to set aside the will. Where the contested will leaves a gift to the person who wants to contest the will careful consideration should also be given to any no-contest clause that exists in the will and whether the person who desires to contest the will understands that if the will contest fails, they may forfeit the gift that was left to them.
For further guidance regarding the above, the reader is encouraged to contact the law offices of Catanese & Wells, A Law Corporation at www.cataneselaw.com or by telephone at (818)707-0407.