Contesting a Will or Trust


The purpose of creating a will or trust is to ensure that a person’s desires are carried out after they die. This is the whole point of such legal documents. Given this fact, it’s understandable that many people may feel a great deal of discomfort at the idea of putting their heart and soul into laying out their last wishes and desires, only to have someone ignore or overturn those wishes. But, there are occasions when it makes sense to contest a will or trust.

Why contest a will or trust?

People often write their wills decades before they anticipate they might die, as a simple insurance policy. However, as long as nobody has shown for a fact that a person has lost their faculties, a person can make major changes, or even entirely rewrite their wills, at any time before their death.

Unfortunately, elderly people are at extreme risk of becoming unduly influenced by caretakers, family members, or romantic partners who take advantage of the diminishing mental capacities of their victims. The majority of legal challenges to wills and trusts are predicated upon this belief, that either:

  • A person wrote or amended their will at a point when they no longer had the mental capacity to have legal control over their assets;
  • And/or they were the victim of fraud or undue influence, often perpetrated by a caretaker who could make the victim feel vulnerable, or a recent romantic partner who coerces the victim.

However, sometimes wills and trusts are contested for more technical reasons, such as that it isn’t written in a way that adheres to the law, or lacks the necessary witnesses or signatures. Or such a document may be challenged based on the assertion that it is an outright fraud.

How do you contest a will?

In order to contest a will or trust, you must have the necessary legal standing to do. Generally speaking, California courts will only allow someone to contest the validity of a trust or will if the contesting person is either named in the will as a recipient of property, or if they would stand to inherit the decedent’s belongings if the will/trust was ruled invalid (i.e. they are a relative who would have inherited property if there was no will, and the property went through probate).

But, it’s one thing to believe that there’s reason to contest a will or trust, and to have the standing to make that legal argument, but it’s another thing entirely to actually do it successfully. The state of California has, understandably, tended to err in favor of respecting the written wishes of a decedent.

However, courts can be persuaded by medical records indicating a decline in mental health, as well as interviews with close family members and friends who can attest to a testator’s loss of mental clarity. In addition, courts are sensitive to situations that don’t “smell right,” such as when the writer of a will or trust outright ignores the existence of close family members and instead leaves all of their property to someone relatively unfamiliar.

Please keep in mind that contesting a will or trust is a complicated process, even in a situation where you have the standing and the evidence necessary to make a reasonable argument for invalidating a trust or will. Before approaching a court, it’s advisable to consult with an attorney who is experienced with estate planning and trust litigation, such as the attorneys at Toeppen & Grevious. Contact us today for a risk-free consultation!