FREQUENTLY ASKED QUESTIONS – Will Contests
When can a will be challenged?
A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation.
Can a will be challenged if it was not prepared properly?
Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements. A will can also be thrown out if it can be proven to be a forgery or to have been tampered with. Courts have declared wills to be invalid that were not witnessed properly, including a situation where the witness was in an adjoining room when the will was signed and not in the immediate presence of the testator.
Can a will be challenged if the maker was suffering from dementia or Alzheimer’s?
Under state law, a testator is required to have mental competency to make a California will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the testator around the time the will was executed.
Can a will be challenged if another person encouraged the preparation of a will?
Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who "befriend" the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. In any of these cases, with the help of Kahn probate attorneys, California wills can be challenged.
How much do your services cost?
While the common perception is that will lawyers are very expensive to engage, our firm’s fees are actually quite affordable. We will determine the projected fees for your situation based on a confidential analysis. This analysis helps us provide an accurate quote, as fees vary according to circumstances and different services, such as IRS help, estate planning, or business litigation. Occasionally, we take on cases under a contingency, modified contingency, or flat-fee basis. We also give our clients the option to pay their fees over time.
As you can imagine, the amount of our legal fees depends on the facts and circumstances of your case. Also, our fees vary depending on the type of service you hire us to perform for you. In certain circumstances, we may take your case under a contingency or modified contingency or flat-free basis.
It is very important that you contact us to receive your free and confidential analysis. Why? It is during your analysis that we will discuss the fees that we will charge for legal representation. We quote fees only after learning enough information about your situation and the type of service that we may be able to provide you. You should be cautious of any professional who quotes their fees to you before fully learning about your situation.