Every week of the year I get at least one telephone call, and usually it is more than one, that goes something like this: “My dad died and me and my sister were left out.  What can we do?” There are many variations of the same concern which is that the caller is not getting from the Will what he thought he should.  (For purposes of this blog entry, I am going to use the word “Will” to include “Trust”).

In California, people are generally free to leave their estate to whomever they wish.  There are some exceptions.  Parents have support obligations for their minor children; people may have legal obligations, including from divorces, to leave certain of their assets to certain people, etc.

However, assuming no minor children and no debts, an estate can be left to anyone.  It does not have to be left to the children or to the closest relatives.  This makes for an interesting situation when an individual gets older and either changes his Will or does a new Will leaving everything to a caregiver or to some new friend or charity that he would never have left his estate to in his earlier years.

This might be a good time to put in my two cents.  Here it goes.  Often people either rewrite their Wills or are susceptible to different types of people because they see these people more (frequently much more) than they see their own family members.  They rationalize that these people are here for me, they are helping me out, and they can use the money.  Obviously, there are people who prey on the elderly.  Chances of this occurring dramatically decrease when you stay in contact with your parents and relatives.

When people are in contact with their family, more often than not, they are aware if someone is taking advantage of their relative.  If that is the case, there are plenty of ways to put a stop to the situation.

Now back to the law!  There are essentially a couple of ways to contest a Will.  The first is to allege that the statutory formalities of Will execution were not complied with by the decedent.  This is always the first thing that I look for when I see the Will (or Trust) that is being complained about.  Sometimes, it provides me with the needed opening.

A second way to contest a Will is to allege that the person who signed it was subject to undue influence.  Essentially, you are arguing that he was to persuaded to sign this Will by someone and he would have done something differently, but for this influence.  The burden of proof is on the person/entity contesting the Will to persuade the court that there was undue influence.

A third way to challenge a Will is to demonstrate that the testator was incompetent when he signed the Will.  This can frequently be established by medical records.  Once again the burden of proof is on the person/entity contesting the Will.

Mistake of fact is a fourth way of challenging a will.  The individual challenging must prove that the testator thought something was one way when in fact it was another.  For example, he writes in his Will that he is not leaving something to his daughter because he loaned her $100,000 which was never paid back.  However, the daughter can prove that not only did she pay back the $100,000, she paid it back with interest before he wrote the Will!

A fifth way to successfully challenge a will is to prove fraud.  Essentially, one is arguing that the person distributed his estate in the way he did because someone lied to him.  As with the other methods, it is not enough to simply allege “fraud”; you must prove it.

As someone who gets a lot of calls on this subject, I have to make decisions fairly quickly. Otherwise I would spend a good part of the day on the telephone hearing people’s individual stories and not earning a living.  I have trained myself to ask questions that help me determine whether any of the above comes in to play.  In other words, do I think a court would determine that the caller was wronged; and, if they were wronged, is it over enough money to make sense to begin representing the client.  When I think the answers are “yes”, then I choose to work with the caller.  Otherwise, I have to tell the person that I am the attorney for him.