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Feeling Left Out?! A California Will is Being Contested, What Should I Do?

My relative wrote their own Will and it’s being contested by family members who were left out, what should I do?

Fight back.  The fact that the Will was written by your relatives is not, in itself, grounds to contest the Will.  Of course, that does not stop people from contesting it anyway.  But to contest the Will, they need legal grounds to do so.  Self writing a Will is not a legal ground because California law allows people to write their own Wills; unless the Will was not legible or lacked two witnesses in the case of a typed or computer generated Will.

Lack of Capacity or Undue Influence

Instead, your family members would have to allege something like lack of capacity, or undue influence in order to overturn the Will.  Just about anyone can allege these types of claims, but proving them in court is another matter.  These are hard claims to prove in court because you have to obtain medial evidence of a mental defect, such as dementia, Alzheimer’s, damage from a stroke or accident, etc.  And then you have to retain an expert to review that medical evidence and opine that the decedent lacked capacity or was susceptible to undue influence.

If there is no medical evidence of a mental defect, then lack of capacity will be nearly impossible to prove.  And if the decedent wrote their own Wills, then undue influence may also be hard to prove since the terms of the Wills are in the decedent’s own words.

In other words, fighting to overturn a Will is difficult.  Various statistics have shown that only about 30% of Will contest cases that proceed to trial are successful.  And in speaking with many judges about lack of capacity and undue influence cases, we have learned that judges are highly reluctant to overturn a Will or a Trust.  Unless you have highly convincing facts, the chances of winning a Will contest case is small.

This is good news if you are defending a Will or Trust because you have a better chance of winning than if you are on the contesting side.  Of course, every case is unique.  So that may change depending on the facts and circumstances of your case.

The bottom line: if someone is challenging your parent’s handwritten Will, then you have to fight back.  Look at what legal grounds the contestants are using to challenge the Will and see if they have any evidence to back up those claims.  If they don’t, then you take your case to trial.