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How Do I Challenge or Stop a Will? California Will Contests

Wills can be contested and invalidated for a variety of reasons, not all of which are included here.

The testator (will drafter) may lack capacity. In California, the person must be 18 years of age and of sound mind. The fact situations are often varied, but often the person does not understand the nature of the testamentary act, or lacks the ability to recall the nature of the individual’s property.

Duress. Although the rule is stated differently in California, duress may invalidate a will if a donative transfer is procured after the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Menace. Menace can be shown by threat of unlawful and violent injury to the person, property, or character of any person. Menace is essentially blackmail, and will invalidate a will if it was used to coerce a transfer or prevent someone from changing a testamentary document.

Fraud. Fraud may be actual or constructive. There are many rules that define actual fraud, but it generally can be intentional if a person suggests a fact known to be untrue (telling a lie), the suppression of a fact, or a promise without intent to perform. Constructive fraud is a breach of a duty with fraudulent intent to gain advantage to another’s prejudice.

Undue Influence. Although there are several tests for undue influence, it boils down to a confidential relationship between the testator and the influencer and suspicious circumstances. Suspicious circumstances can be shown by procurement of a will, no independent advice by the testator (person who executes the will), secrecy and haste in the signing of the will, a change in attitude, an unnatural or unjust gift, or susceptibility to influence.

Mistake. It is hard to show that a mistake will invalidate a will or part of a will, but under certain circumstances it may be possible to prove.