So you want to contest a parent’s Will? You better be ready to argue (and support with evidence) one of the following grounds:
- Lack of Capacity. To create a San Diego Will, you need to know (1) the nature of your property—a brief description will do—(2) your relation to family members, and (3) the fact that you are creating a Will by singing the document. That’s it. Will capacity is one of the lowest forms of capacity under our laws, and it can usually be met. In fact, even people under a conservatorship action (who cannot manage their own financial affairs) still can create a Will. To prove a lack of capacity, you need to hire an expert to attack one of the elements listed above. And for that, you need some good medical records that discuss the decedent’s state of mind when the Will was executed.
- Undue Influence. Undue influence is when a person replaces his intent with that of the decedent and coerces the decedent to sign a Will. It goes beyond merely influencing a person (since we all influence each other every day), but rather replacing a person’s intent. Undue influence is presumed by law where (1) the wrongdoers actively participated in creating the Will, (2) the wrongdoer was in a confidential relationship with the decedent, and (3) the wrongdoer unduly benefitted from the Will. Sounds easy enough, but only if you have the evidence to back it up. So you must find the evidence to support each of these elements.
- Fraud. You already know what fraud is, good old fashioned lying to get something of value. For Wills, fraud specifically means lying about a material fact to get the decedent to sign a Will. The wrongdoer can either lie about what the document is, or the wrongdoer can lie about something to fool the decedent to change a Will.
The problem with proving fraud is that you are never there to hear the lie. And the decedent who acted on the lie is dead and cannot testify. That usually leaves only the wrongdoer, who of course is not going to tell. So unless someone else heard the lie, you will be hard-pressed to prove it in Court.
If you can prove one of these grounds, then you are on your way to mounting a successful Will contest. Just find yourself a San Diego contested Will attorney and you will be off to the races.
Albertson & Davidson, LLP
2175 Salk Avenue, Suite 180
Carlsbad, CA 92008