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How Do You Contest a Will? - Werner Law Firm

How Do You Contest a Will?

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: December 30, 2019

Losing a loved one can be a traumatic experience, wrought with painful memories and regrets. However, that pain can be made even worse when finding out that there was no space made for you in your loved one’s estate plan. Finding out that the will completely excludes you can be both hurtful, and suspicious – […]

Losing a loved one can be a traumatic experience, wrought with painful memories and regrets. However, that pain can be made even worse when finding out that there was no space made for you in your loved one’s estate plan. Finding out that the will completely excludes you can be both hurtful, and suspicious – especially if you were close.

While wills exist to provide context and direction when administrating a decedent’s will and distributing their estate, they can serve to further misdirect and even lie. Fake wills, wills made under duress, or wills that provably do not reflect the decedent’s true wishes may potentially be contested – if certain requirements are fulfilled, and all your cards are played right.

If you have found yourself left out of a will, then there are steps you can take to, in the very least, get a clearer picture of why. In some cases, you may even uncover a lack of testimonial capacity, coercion, or even potential fraud. However, before anything else, it is important to note that this will be a difficult endeavor.

Unless it is immediately clear to you why you were wrongly left out of the will, with the proper evidence to back this up, you may find yourself in the middle of an unfortunate wild goose chase at worst, or an uphill battle at best. It is critical that you meet with a legal professional and sort through your options, to ensure that, should you pursue this, the ultimate payoff will be worth the fees and time.

Should You Contest a Will to Begin With?

The first question you must ask yourself is whether you possess the means to prove that a will should be contested to begin with. Some wills are simply never updated, so if your positive relationship with the decedent only began recently, they may simply never have considered adding you to their will.

Going on a fact-finding mission with the rest of the family may help you prove something more sinister, or it may just bring closure to the entire painful affair. Nevertheless, it is important to try and gather as much information as you can initially before investing a significant amount of resources into seriously pursuing legal action.

If you have grounds to believe that the will was somehow faked or compromised, are related to the decedent (i.e. you are their kin, and simply a friend), and may even have been led to believe you would receive an inheritance, then your next step would be to determine whether you have the necessary funds to start this battle. If you have a vague idea of how much you would have or could have received, write it down immediately.

This is crucial. If the dollar value does not cover the costs of hiring an estate lawyer, it would be unwise to try and lawyer up. But if you believe it would have been a significant portion of the estate, and believe that you were previously named on an earlier version of a will/should have been on the will, then consider seeking a free consultation with a legal professional and expert in family law and estate planning.

Wills can be contested for four reasons:

    1. Coercion
    2. Lack of mental capacity
    3. A faulty will (not written in accordance with state laws)
    4. Fraud

Fraud, Forgery and Fakery

There are a variety of ways in which a will may be fraudulent. If the testator (person signing the will) was misled about its contents, then it would count as fraud. If the document and its signature are a forgery, it would count as fraud.

The obvious trouble with trying to prove fraud and forgery is that the testator cannot be questioned as to what they knew or thought when they signed the will, or whether they agreed to the terms of the will at all. Furthermore, testamentary capacity is another element that often goes hand-in-hand with fraud, as a will that is written and signed by the testator in a period of mental incapacity counts as fraudulent.

One way to potentially throw suspicion onto a will that you believe to be fraudulent is to question the surviving witnesses. While California allows holographic wills (those created in a haste without witnesses), most wills still require witnesses to be considered valid. If the witnesses’ testimonies about the contents of the will or its signing are inconsistent and do not add up, there could be an argument for its dismissal (inconsistent testimonies do not necessarily mean fraud, however).

There Is Another

Another way to invalidate a will and successfully contest it is by providing a more recent version. If you heard that a will was being probated after its testator had passed away and you knew of a newer version they created and signed before their death, then bringing it to a lawyer to discuss your options should be your very first reaction.

If you know of a newer will created before the testator’s death wherein they were still clearly lucid and had every intent to change their will, you can contest the current will.

Time Is of the Essence

Regardless of what you choose to do, you must choose to do it quickly. Smaller estates especially are probated quickly, and things can move on without much delay if there is not a need to do a deeper investigation. If you have the means to get legal help and strong evidence that the will may not necessarily be valid, get to a lawyer quickly, and file a contest as soon as is feasible.

If you do, the burden of proof will be on you. But you will have bought some time to seek it out – staying on course and getting everything done in a timely manner is in your best interests, however.

A final option to consider is mediation. Rather than turning it into a court battle, your lawyer may recommend that you settle the issue with the estate, if possible. No course of action is explicitly recommended unless your circumstances specifically render it favorable. This is why having an estate planning professional by your side is especially important when aiming to contest a will.


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