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Challenging a will

Almost 99 percent of wills go through the probate process without any issues. However, California residents who have completed a will should be aware of the different reasons a will can be challenged.

Any person who may have an interest to gain from the will can challenge it. The majority of the successful challenges are usually those from spouses. The most effective reasons to challenge a will include a lack of testamentary capacity in the testator, the individual who wrote the will, and excessive persuasion or influence on the testator to write a will in a certain way.

According to the law, only adults aged 18 years or older have testamentary capacity or the competency to write a will. The contestation of a will that is based on testamentary capacity asserts that the adult was senile, demented, insane, under the influence of a substance or in some way had no mental capacity to properly create a will.

A will can also be contested by proving there was forgery, undue influence or fraud. These cases often involve a manipulative individual taking advantage of a vulnerable person.

If another will exists that takes precedence over the newer one, a challenge can also be made on that basis. Properly destroying outdated wills or showing an intention to do so may help avoid the confusion that may arise.

Inappropriate and insufficient witnesses can be another basis for contesting a will. States have varying requirements regarding the correct number of adult witnesses and many prohibit an heir being named as a witness.

If an individual believes he or she has cause to contest a will, an attorney who practices probate litigation may be helpful. The attorney may verify why the will is being contested and file motions to dispute its contents.

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