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At time of death, a will describes which person will manage the settling of the estate, an executor, and who should receive any inheritance.  A revocable living trust does the same thing with the significant exception that it avoids Probate in California.  For many reasons, beneficiaries can feel slighted by what they did or didn’t receive, and some individuals are entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will or a trust is called a “contest.” A contest can be an extremely expensive and stressful process for those seeking to defend the estate plan.

In the case of a will, once probate is underway, the named executor will take the necessary steps to complete probate and notify beneficiaries named in the will. Essentially, the same process applies for living trusts except that the court is not involved. Know that the vast majority of wills pass through probate and living trusts are administered without issue. The courts rightly view the will like the author’s (testator/trust maker), last voice. Because the testator can no longer speak to their wishes, the courts try to adhere to the legally filed will stringently. Because the odds are stacked against winning the legal challenge, most challengers will find it a fruitless and costly endeavor.

Under what circumstances then would you want to contest a will or a revocable living trust? Legally, only a person or entity with “standing” can contest. Standing is when the party involved in the contest will be personally affected by the case’s outcome. Most often, this means an heir or beneficiary already named in the decedent’s last will or trust or any preceding will or trust. It may also include any person (usually a spouse or child) not named, but because of California’s intestacy laws would be eligible to inherit in the absence of a will or trust. Typically, four grounds are viable for contesting a will:

• The will or trust’s signing lacked the proper legal formalities
• The mental capacity of the decedent to make a will or trust is in question
• Someone leveraging undue influence over the decedent into making or changing a will or trust
• The will or trust’s procurement is fraudulent

Certain fact patterns may lead to a successful contest. As an example, if a person writes their own will or trust, some legal formalities may be overlooked, rendering the document invalid. In particular, the “do it yourself” method for creating a will or trust may not include all of the “what if” scenarios making the document incomplete. In another example, if the person is experiencing isolation from family and friends, the primary beneficiary’s influence and motives regarding the estate may come into question. If the executor is trying to enforce an outdated will or a trustee is trying to enforce an older version of the trust, the newer one should supersede the older one as long as no coercion was involved in writing the most recent version. Finally, some medical evidence may suggest the person lacked the requisite mental ability. Occasionally the challenger to an existing will or trust can negotiate a settlement with the estate instead of enduring a court proceeding.

Many wills and trust include a no-contest clause, also called an “in terrorem” clause. This provision states that if anyone files a lawsuit challenging the document’s validity, they will receive nothing from the estate. While this may a powerful deterrent, there are exceptions that open the door to litigation.

To protect your will or trust from being contested, even if you have limited assets, your best strategy is to have your estate plan professionally drafted by an attorney well versed in estate planning. Using an attorney can help protect you and your estate from future legal challenges while helping you think through who you want to inherit your money and property, and how each person should receive what they inherit.

If you would like to discuss whether a will or trust is appropriate for you or whether you should update an existing will or trust, we would be happy to speak to you at your convenience. Please contact us today at 877-585-1885 to schedule a free consultation to discuss your legal matters.

Thanks for reading.

Christopher E. Botti, Esq., Certified Specialist in Estate Planning, Trust and Probate Law