Is it possible in Californian law that the person witnessing a will can also be the recipient of the estate. This is not legal in England wh...

Question

Is it possible in Californian law that the person witnessing a will can also be the recipient of the estate. This is not legal in England where I live. My Fathers will was changed two weeks before he died and I have no way of knowing if the will was legal. I live in London and my dear Father lived in San Diego. His estate was left to his grandsons boyfriend and my brother and myself were left out completely. It was a complete mystery as to why this happened. If this is not legal what can I do about it? Thank you. Lynda Horner

Answer

It would appear the action of your father is not legal, and you can contest the will as being invalid on the ground the will was executed under menance, fraud or duress, especially since your brother and yourself are what is called pretermitted heirs, meaning not being included in the will, as to at least some sum, which would show your father thought about the two of you. Secondly, if the witnesses to the will were also gifted by the terms of the will, then the will is presumed to have been executed under menace, fraud or duress, and the burden is on the witnesses to prove otherwise. Lastly, obtain probate litigation counsel in San diego county, San Diego, California to file a petition to have the will declared invalid and obtain distribution for the two of you. The last thing mitigating in your favor, is the fact the will was executed just before your father's death, which leads me to be suspicious of his ability to understand the seriousness of his actions.

Answer

Dear Ms. Horner:

You (and your brother, if he is so inclined) need to contact a California estates litigation attorney to pursue your challenge of the will. This may include probate litigation in San Diego County Superior Court, to determine whether the will is valid, how the estate should be distributed, and who should manage the estate before its distribution.

A will witnessed by an interested person in California is not automatically invalid. If the will is not witnessed by two disinterested people in addition to the interested person, however, the gift to the interested person is presumed invalid. Your grandson's boyfriend would then have to prove that there was no fraud, undue influence, or other issue with respect to that gift. The relevant statute is California Probate Code Section 6112.

In an initial interview, you would want to share with the attorney any and all information you have about your father's state of health at the time he made the will, the size of the estate, any prior will that he had made, the nature of the relationship between your father and the named beneficiaries, and a host of other matters. It would help matters greatly if you could provide the attorney with a copy of the will you wished to challenge, and any prior will your father had.

I would be happy to discuss this matter with you further at your convenience. Please do not hesitate to contact me if you have any further questions, or if I can be of any help to you and/or your brother.