Want to contest a California Will? Do you believe the terms of the Will should not be enforced? A Will can be contested and invalidated for a variety of reasons, not all of which are included here.
Undue Influence. Although there are several tests for undue influence, it boils down to a confidential relationship between the testator (will drafter) and the influencer and suspicious circumstances. Suspicious circumstances can be shown by procurement of a will, secrecy, no independent advice by the testator (person who executes the will), an unnatural or unjust gift, susceptibility to influence, haste in the signing of the will, or a change in attitude.
Menace. Menace is essentially blackmail. Menace can be shown by threat of unlawful and violent injury to the person, property or character of any person and will invalidate a will if it was used to coerce a transfer or prevent someone from changing a testamentary document.
The testator may lack capacity. In California, the person must be 18 years of age and of sound mind. The fact situations are often varied, but often the person does not understand the nature of the testamentary act sometimes because of dementia, or lacks the ability to recall the nature of the individual’s property.
Fraud. Fraud may be actual or constructive. Actual fraud generally can be intentional if a person tells a lie, suppresses a fact, or makes a promise without intent to perform. Constructive fraud is a breach of a duty with fraudulent intent to gain advantage to another’s prejudice.
Duress. Although the rule is stated differently in California, duress may invalidate a will if a transfer is obtained after the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.
Mistake. It is hard to show that a mistake will invalidate a will or part of a will, but under certain circumstances it may be possible to prove.
Have other questions, call a probate lawyer; call Mitchell A. Port at (310) 559-5259.