A will or trust contest is exactly what the term implies—a challenge to the validity of a document purporting to be decedent's last will and testament (or a codicil). The 'contest' may occur either before or after admission of the will to probate.
Generally--any 'interested person' may contest. Whether raised before or after the will is admitted to probate, a will contest may be pursued by 'any interested person.’ The Probate Code defines 'interested person' broadly to include a decedent's spouse, registered domestic partner, children, heirs, testate beneficiaries, creditors, and 'any other person having a property right in or claim against' a trust or estate which may be affected by the proceeding.
The Code expressly states the meaning of 'interested person' may vary. Whether a particular person is 'interested' is to be determined on a case-by-case basis, according to the particular purpose of the proceeding and the particular matter involved.
Under case law, the general rule is that the will or trust contestant must have an interest of a pecuniary nature which may be impaired or defeated by probate of the will or benefited by setting it aside (such as an heir or legatee under a prior will).
Case law has recognized standing in the following persons:
Heirs at law: Any person who would succeed to any portion of the estate if decedent had died intestate (without a will) has standing to contest a testamentary document which would defeat or impair that intestate interest.
Pretermitted heirs: Decedent's children, spouse, and registered domestic partner, although omitted from the will (or other 'testamentary instrument'), may have claims to a 'statutory share' of the estate as 'pretermitted heirs.'
Beneficiaries under earlier will: The beneficiaries under an earlier will, whose interests are impaired or defeated by a later will offered for probate, have standing to contest the later will.
Beneficiaries under later will: Conversely, if the interest of a beneficiary under a later will may be impaired or defeated by probate of an earlier will, the beneficiary has standing to contest probate of the earlier will.
Creditors of heirs: An heir's creditors may have an 'interest' in the estate if decedent's will disinherits the debtor-heir. However, such creditors have standing to file a will or trust contest only if they have perfected a judgment lien at the time the property would pass to the heir if the will were set aside. Conversely, an heir's general unsecured creditors (no judgment lien) apparently have no standing to file a will contest.
Executor under earlier will admitted to probate: The executor appointed under a will, duly admitted to probate, has an affirmative obligation to defend that document against subsequent contests.
Proposed executor under will offered for probate: A person designated by decedent to be executor has no 'duty' to defend a contest before admission of the will to probate and his or her appointment as executor.
Assignee or estate of proper contestant: The right to contest a will survives to the contestant's estate; similarly, it is assignable. Hence, a proper contestant's assignee or a deceased contestant's estate representative has standing to pursue the will contest in the original (assigning or deceased) contestant's place.
'Direct contest': A 'direct contest' is a pleading in a court proceeding alleging the invalidity of an instrument (or one or more of its terms) based on any of the following grounds:
Revocation
Lack of Capacity
Fraud
Misrepresentation
Menace
Duress
Undue Influence
Mistake
Lack of Due Execution
ForgeryIf you believe that you have lost your inheritance based on any of the above, contact the Law Offices of Zilinskas & Woosley at
www.zwlegal.com to discuss your options.
Remember, in these types of cases there is a very limited time in which to intiate a challenge.
