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Grounds for contesting a will or trust

Posted by Michael Guzman | Aug 26, 2019 | 0 Comments

If you think a will or trust (or some provision thereof) is not valid, and you would like to contest it in court, you need to have a valid legal reason. You should not contest a document just to cause trouble or because you are unhappy with the distribution. If you file a contest without probable cause, you risk losing any gift you might have otherwise received. Here are the common grounds for contesting a will or trust.

The person who drafted the document “lacked capacity”

In California, you must be of sound mind to execute valid estate planning documents. If the testator did not have sufficient mental capacity at the time the documents were executed, those documents might be invalid.

Someone exercised “undue influence”

Undue influence is another circumstance that can cause a document to be invalidated. This means that someone acted in such a way (such as by pressuring the testator to the point of overcoming their free will) that caused the testator to draft documents that do not reflect their true wishes.

The court will take into account the circumstances in determining if undue influence was exercise, including the vulnerability of the testator and the influencer's authority over them.

Fraud, duress, or menace

The elderly are particularly vulnerable to methods such as these:

  • Fraud: Using false representation to induce a testator to make a testamentary disposition in the fraudster's favor
  • Duress: Unlawful or fraudulently obtained confinement of the testator (or the testator's family member) or detention of their property
  • Menace: Threat of duress or injury to a person (or their family member) or property

Obviously, documents executed under such conditions are invalid, as they do not reflect the true intentions of the person executing them.


This ground is rarely used, and the case law is not very extensive. However, if you think a mistake was made by the testator (i.e., the person accidentally signed the wrong document), you should at least consult with a probate attorney to help determine your options.


Even if a will would otherwise be valid, one argument that might be made is that it was subsequently revoked by an action of the testator. Such action might include executing a more recent will or damaging the will in some way that shows an intent to revoke. If a document has been revoked, it is no longer valid.

“Presumptively invalid donative transfer”

A transfer in a will or trust to certain types of people is presumed to be the product of fraud or undue influence, including the following:

  • The person who drafted the document (or a partner, shareholder, or employee of a law firm in which they have an ownership interest)
  • The “person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor” (or a partner, shareholder, or employee of a law firm in which they have an ownership interest)
  • The care custodian of a dependent adult (if executed while under the person's care, or within 90 days before/after the period of such care)
  • A person related to, or a cohabitant/employee of, those described above

If such a transfer is made in a will or trust, the beneficiary can rebut the presumption by proving with “clear and convincing evidence” that the gift was not the result of fraud or undue influence. (This does not apply to the person who drafted the instrument. In that case, the presumption is conclusive.)


A will or trust (or provision) may also be invalidated if the document has been altered, corrupted, or falsified in some way by another person. For this type of claim, a forensic examiner, such as a handwriting expert, may need to be employed.

Lack of legal formalities

A document may also be invalidated if, during its execution, one of the legally required formalities was not followed. For example, if the execution of a will did not include the witness requirements, the instrument could be held invalid. Likewise, if a trust did not name a trustee, or if it was not properly funded, it may be found invalid.

Although it is difficult to invalidate a will or a trust, there are numerous grounds to do so. If you suspect that the will or trust in question is not valid, you should take the document to an attorney, explain the circumstances, and find out what your options are.

Helix Law Firm can help with trust litigation

If you are considering contesting a will or trust, or are defending against such a contest, Helix can help. We will review the document, and the facts surrounding its execution, and advise you on how to proceed. We can help you resolve the dispute, including representing you in court if necessary.

If you're interested in learning more, please call us at (619) 567-4447 to schedule a free consultation.

About the Author

Michael Guzman

Michael Guzman is a Paralegal at Helix Law Firm. He helps to maintain Helix Law Firm's extraordinary quality of customer service, and assists in the intake of new clients and in communicating with existing clients and vendors. Michael attended the University of San Diego and is a proud Torero.


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