During estate planning, many do not expect their Last Will and Testament to ever be contested. A will is widely recognized as a legally binding and permanent document that’s conditions will be met after an individual’s passing. However, each year between 0.5%-3% of wills are contested within the United States, alone. To avoid your will being contested, it is essential to understand the various ways people most often find cause. Below are some of the most common reasons people contest wills in Los Angeles, California.
Reason #1: Undue Influence
One of the most common causes of a will contest is undue influence. Undue influence occurs when a testator is coerced or pressured to rewrite and execute a will. Often, the “influencer” will ask the testator to change a previously established estate plan to include them as the primary beneficiary or exclude others from the will or trust.
Reason #2: Elective Share
Many states mandate a portion of the estate be given to a surviving spouse. According to California’s elective share provisions, a surviving spouse has the right to one-half of any community or quasi-community property but must meet deadlines to be able to acquire the elective share.
Reason #3: Lack of Capacity
In order to make a Last Will and Testament legally binding, a testator must have the mental competency to:
- Understand and recollect the nature of their estate assets and situation.
- Remember and recognize the individual’s relations to living descendants, spouses, and parents.
-Understand the nature of the testamentary act.
A will or trust can be declared void if the testator’s lack of capacity can be medically proven. Incompetence is most frequently established through prior medical evidence of mental illnesses such as dementia, Alzheimer’s, and senility.
Reason #4: Breach of Fiduciary Duty
A breach of fiduciary duty occurs when a fiduciary is shown to not have acted in the represented party’s best interest. In relation to estate litigation, this can occur by an executor or trustee, who has an obligation to act in the estate beneficiaries’ best interests. A legal cause for will contest will emerge if these fiduciary duties are broken.
Reason #5: Lack of Formalities
Under the California Probate Code, a will must be signed by the testator or their representative, and the signing must be viewed by two witnesses to be considered valid. If a will has not been properly signed or witnessed according to California law, or not created with property testamentary formalities, it can be contested.