The Law Office of Howard L. Hibbard assists our clients in the resolution of a sensitive elder law issues, including will contests, with compassion and integrity. Our office works with elders and their spouses, children and grandchildren, beneficiaries of wills and trusts, and healthcare providers to provide comprehensive solutions. Elder persons are classified as those adult 65 years of age or older. Elder law matters can be both complex and emotional. Our attorneys are known for providing understanding personal service and are experienced in the recapture of assets wrongfully obtained by family, friends or healthcare providers, in addition to will contests by beneficiaries and other interested parties. To arrange a free consultation with one of our attorneys, please contact us.
General Information about Will Contests
A Will Contest is a challenge to the validity of a will. These challenges are made by potential beneficiaries and heirs attempting to invalidate an existing Will. Under the California Probate Code, any “interested party” may contest a Will. California case law further states that the “interested party” must have a pecuniary (financial) interest in the Will that would be defeated or impaired by probate of the Will or that would be benefited if the Will was invalidated or set aside.
The California Probate Code also includes provisions that a challenge to the validity of a Will must be made in Probate Court within a specified time from either: (1) the notice of death; or (2) the petition to admit the Will to Probate. Our office suggests contacting an attorney to determine assist in determining these time frames as late claims may not be heard by the Court.
If the Probate Court determines that a Will is invalid, the Court may: (1) invalidate the entire Will and distribute the estate under the law of intestacy (as if no Will existed), or (2) invalidate only the challenged provisions of the Will.
Bases for Will Contest Claims
A Will Contest may be made for a variety of reasons. Legal grounds for a will contest include:
(1) improperly drawn, witnessed or signed Will documents;
(2) lack of mental capacity of the testator at the time the Will was drafted;
(3) fraud, duress, force or undue influence of the testator by another person;
(6) misrepresentation; and/or
This is not an all-inclusive list and additional reasons for challenging a Will may exist.
“No Contest” Clauses
Some Wills may contain a “no contest” clause stating that an objecting beneficiary forfeits any gift due under the Will if the beneficiary challenges the Will. In 2010, the new Probate Code Section 21310, et. seq. came into effect. Under the new law, most “no contest” clauses are unenforceable except for contents that fall into specified categories.
“No contest” clauses are enforceable in the following limited circumstances: (1) direct contests without probable cause, (2) challenges to transfer of property on the grounds that they did not belong to the transferor if it is specifically mentioned in the no contest clause, (3) filing or prosecuting a creditor’s claim if it is specifically mentioned in the no contest clause. As a result of the new law, a determination of “probable cause” must be evaluated prior to contesting a will. Our office highly recommends contacting an attorney to discuss this and other risks.
Services We Provide
The Law Office of Howard L. Hibbard provides the following services to our will contest clients: (1) evaluation on a case-by-case basis of the viability of the claim and assessment of the risks; (2) consultations, phone calls, updates to clients, (3) preparation of all court paperwork, pleadings and documents; (4) legal research as necessary, (5) preparation of all trial/hearing exhibits and witnesses, (6) court or administrative hearing, arbitration and/or trial representation, (7) service of papers and court filings.
The Law Office of Howard L. Hibbard is well versed in California will contest law and procedures. If you have questions regarding will contests or elder law in general, please contact our office for a free consultation: contact us.