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How a will might be challenged

People in California who are creating an estate plan might wonder under what circumstances they would be able to successfully challenge a will. In reality, wills are rarely challenged, and when a challenge is successful, it is usually one that is brought by a spouse on the grounds that a person was either incapacitated or influenced in some way.

The former reason refers to testamentary capacity. This is the ability of a person to understand the implications of what they have put in the will including the value of the property, who the beneficiaries are and what a will is. The person must also be 18 or older. A person might not meet these criteria due to mental illness, dementia or being under the influence of alcohol or drugs among other reasons.

A will might also be challenged if another will that was written at a later date is found or if the will is prepared improperly in some way. California allows wills handwritten by the individual with no witnesses, but some other states do not. However, a will that is valid in the state where the person is resident can generally be settled in another state if necessary.

Creating an estate plan can be complex, and the decisions made throughout the process have real consequences. For example, it is important to choose the right executors for wills and the right trustees for trusts. These should be trustworthy people who can cope with family conflict. An attorney may be able to assist a person who is creating an estate plan in using the right legal language, preparing documentation correctly and choosing the right people to oversee the process.

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