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Contesting a Will or Codicil


A Bay Area Probate Litigation Attorney Can Guide You Through The Process

A will codicil refers to an amendment to an existing will. It must follow the statutory procedures of a formal will to be valid. Imagine this scenario. After the death of the testator — the person who wrote the will — a codicil appears. It could then change the original will. This may cause family members or other beneficiaries to suspect that something is amiss. They might believe that the testator made the will amendment because of undue influence, a lack of mental capacity or fraud. Thus, they might consider legally contesting a will codicil

Challenging a will or a codicil can be difficult, but it is not impossible. However, you will need an experienced Oakland probate litigation attorney working with you. Such a professional needs a strong understanding of will contests and probate law in California. The Triay Law Office meets those qualifications and can help. Our Oakland probate litigation attorneys possess over 30 years of experience providing skilled representation in contested probate matters. We work in all area of probate litigation. This includes defective trusts and wills as well as contesting wills or will codicils.

On What Grounds Can You Contest a Will Codicil?

There are several grounds on which a person might contest a will or will codicil. Two of the main reasons to contest a will codicil are:

  • Lack of mental capacity – For a will (and any amendments made to it) to be valid, the testator needs to be at least 18 years of age and of sound mind. This will ensure that he or she understands the nature of the will documents he or she is signing. They also understand the nature and extent of the property owned and the relationships between them and the beneficiaries.
  • Undue Influence – In some cases, fraud, forgery or undue influence caused the testator to add the will codicil against his or her own free will. They have been manipulated into it as well. A person who is elderly and mentally weak can be unduly influenced or lack a proper understanding of what they are doing.

If you are considering contesting a will codicil, please consider working with a qualified Bay Area probate litigation attorney. They can help you properly prove the undue influence or a lack of capacity which resulted in the will amendment. Unfortunately, by this time, the testator will likely no longer be alive, therefore his or her testimony cannot be used. In this case, you will benefit most from hiring an experienced attorney to gather documents such as medical records and bank records. An attorney can also call upon expert witnesses — such as doctors and psychiatrists, family members and other witnesses — to build your case.

Who Can Contest a Will Codicil?

Anyone who has something to gain financially can challenge the will or will codicil. The most successful challengers to a will or a codicil tend to be beneficiaries under an earlier will. They prove able to prove that the testator lacked mental capacity or was unduly influenced by another party — or both. A court could rule to invalidate an entire will or simply certain provisions or amendments to it.

Rely upon an Oakland probate litigation attorney to help you during these complicated legal procedures.

Contesting a Will Codicil? Call Our Bay Area Probate Litigation Attorneys

The Triay Law Office excels in all matters of probate law and has advanced knowledge of will contests. We have worked on a multitude of cases that involved undue influence and lack of mental capacity. We understand the underlying issues of contesting a will codicil and strive to get to the bottom of the matter and find the most beneficial result.

Call our Bay Area probate litigation attorneys for a consultation at (510) 330-2203 or contact us online if you have questions or wish to get started.

FAQ Learn More About Probate Litigation

  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.
  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.