Contesting A Will

Will contests are based on allegations of undue influence or mental incapacity. These same allegations can be made against trusts.

Undue Influence

The allegation of undue influence requires proof of the following:

  1. the existence of a confidential or fiduciary relationship between the testator and the person alleged to have exerted undue influence;
  2. active participation by such person in preparation or execution of the will; and
  3. an undue benefit to such person or another person under the will thus procured. Estate of Gelonese (1974) 36 Cal. App. 3d 854, 862


Mental Incapacity

To make a valid will, the testator must be at least 18 years of age and be of “sound mind.” An individual is considered not mentally competent to make a will if at the time of making the will he or she:

  1. does not have the mental capacity to understand the nature of the testamentary act (the creation of a will).
  2. does not understand and recollect the nature and situation of his or her property  or
  3. does not have the mental capacity to remember and understand his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will.  [Prob. Code, § 6100.5 subd. (a)]

A person may be considered mentally incompetent if he or she suffers from a mental disorder displaying symptoms of delusions or hallucinations that result in the person devising property in a manner which, except for the delusions or hallucinations, the person would not have. [Prob. Code, § 6100.5 subd. (a)(2)]

The person asserting mental incapacity has the burden of proving that the decedent was of unsound mind when the will was executed and the unsound mind.  The contestant must also prove that the unsoundness of mind affected or controlled the provisions of the will that are contested.  Contested provisions of a Will are most often the distribution of assets.