In January, I published a video with the title “What Is A No Contest Clause?” In it, I explained that a no-contest clause is a tool that can help prevent a person from challenging your Will or trust. Today I want to expand on that video by looking at the flipside of that question and giving more detail on the process of contesting a Will.

Who Can Contest a Will?

Not just anyone can contest a person’s Will. Under California law, only an “interested person” can contest a Will, a class that includes the deceased person’s:

  • Children;
  • Spouse;
  • Creditors;
  • Beneficiaries (including heirs, devisees, and beneficiaries under a trust); and
  • Others with a property right in or claim against the testator’s estate which may be affected by the Will.

The idea here is that only those who would actually be affected by the Will’s admission to probate can try to stop it.

On What Grounds Can a Will Be Contested?

California law also limits the grounds on which a Will contest can be successful. For example, you can’t successfully challenge a Will just because you don’t like how the testator divvied up his or her property. That would defeat the whole purpose of a Will! The grounds on which a Will contest can be based include:

Lack of due execution

To be valid as a Will, a document’s execution must satisfy certain formalities. For example, it must generally be signed by the testator and two witnesses who saw the testator sign the Will. If a person believes that these formalities were not followed, he or she can challenge the Will.

Lack of testamentary capacity

A person lacks testamentary capacity if he or she is unable to understand what the Will does, what property he or she owns, or his or her relations to living relatives and those whose interests are affected by the Will. Without testamentary capacity, a person cannot make a Will.

Undue influence

Unfortunately, some people try to take advantage of the sick or elderly, exerting what the law considers “undue influence” over them in making a Will. The classic example of this kind of influence is a caregiver who, shortly after coming into a person’s life, convinces him or her to leave everything to the caregiver instead of his or her own children or other loved ones.

Wills are revocable

A Will can be revoked by being destroyed, or it can be revoked by executing a new Will that expressly revokes or contradicts the old one. In the event someone offers a revoked Will to the court, any other interested person can challenge it.

Reducing the Risk of a Will Contest

Of course, at the planning stages, the goal should be to reduce or eliminate the risk of a Will contest ever occurring. Here are three ways to help do just that:

Use No-Contest Clauses

A no-contest clause says that any person who challenges your Will loses the right to receive whatever the Will otherwise set apart for him or her. These clauses have become common in California Wills and trusts. (Remember to see my January video for more information if you haven’t already.)

Include “carrots,” not just “sticks”

No-contest clauses are a blunt instrument, and they aren’t always successful. To reinforce them, you can include benefits in your Will for those individuals who might otherwise try to challenge it. This can make a challenge not worth the effort, as well as give them something to lose if they do decide to contest it.

Work with an estate planning attorney

An experienced estate planning lawyer can help you anticipate Will contests and develop strategies to avoid them. Even simple strategies can be helpful in this regard, such as including an express revocation of prior Wills and making sure you satisfy all the formalities involved when you sign the Will.