After your loved one passes away, the terms of his or her will may be revealed to you. Unfortunately, you may be surprised and disappointed by what the will dictates. This may have been the true intention of your loved one. Alternatively, your loved one may have been the victim of fraud that led him to create a will that does not reflect his true wishes. As the surviving loved one, it is then up to you to decide whether you want to challenge the will’s validity. Wills can be challenged on many grounds, including undue influence, lack of mental capacity, and fraud.
Challenging a Will Due to Suspected Fraud
If you are able to prove to the court that your loved one’s will was created as a result of fraud, the will not be admitted to probate. As a result, during the administration of your loved one’s estate, the terms of that will are not followed. Instead, your loved one’s estate will be distributed in accordance with the laws of California, as if your loved one had died without a valid will—unless an earlier, valid version of his or her will exists.
To successfully challenge the will, you must show that fraud occurred. This fraud can be actual or constructive. Actual fraud is deemed to exist when there is an intention to deceive by any of the following:
- The suggestion as fact of something not true by one not believing it to be true.
- The positive assertion of something not true, made in a manner not warranted by the information possessed by the person making the assertion—even if that person believes the assertion is true. This is also known as negligent misrepresentation.
- The suppression of the truth by someone who has knowledge or belief of the truth.
- A promise made without any intention of performing the promise.
- Any other act meant to deceive.
Constructive fraud is deemed to exist when there is a breach of duty that gives an advantage to a person by misleading another to his or her prejudice. To prove constructive fraud, you do not have to show that there was actual fraudulent intent. Under California law, there also may be certain acts or omissions that are deemed to be fraudulent automatically.
When pursuing your will contest, you must demonstrate that your loved one was influenced by either actual or constructive fraud in order to have the will invalidated. In addition, you must show that your loved one had a mistaken belief or beliefs that occurred as a result of the fraud at the time that the will was signed. This is true even if the actual fraud was carried out at an earlier date and time.
Pursuing a will contest is not an easy task for those without the necessary experience. Fortunately, we are here to help guide you through this process with patience and sensitivity. We encourage you to learn more by checking out our client testimonials today.
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- Considerations Before Pursuing a Will Contest
- Challenging a Will With a No Contest Clause
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307