Legal Question in Wills and Trusts in California

Re: Is a no-contest clause in a will absolutely binding?

This sounds like a potential "undue influence" or lack of "testamentary capacity" case. Where family members coerce or overly persuade a severely physically or mentally ill relative to write a will favoring them, that is considered undue influence. When a testator (person who writes the will) is either mentally ill or under such medication that they cannot think clearly regarding who should be their heirs, that is lack of capacity. Either is a basis to challenge the validity of the entire will. However, there is no basis here that I see to only challenge particular clauses of the will, such as the no contest clause. It either stands or falls as a whole.

The downside is that if she dies with this will unrevoked and if you challenge and the will is upheld, you could lose everything. Further, I don't think there is an way to challenge the will before her death. You should carefully document this person's mental and physical condition at the time this will was written and gather as many witnesses to her medical condition and the effects of it as you can. And, it is probably fair play to talk to her when she is lucid and try to question the fairness of her decision. If she changes the will back before she dies to treat all equitably, it will be much harder to challenge the will. But, never forget that most importantly, your mother is very ill, and give her all the support you can and not appear to be scrambling or squabbling over her assets before she even dies.

Best wishes.

Re: Is a no-contest clause in a will absolutely binding?

There is actually a procedure to obtain a court opinion as to whether or not a challenge to a will falls under the no contest clause. For instance, if the change had been to make her "care giver" (not a relative) a beneficiary, there is an exception for no contest clauses.

This being said, from what you described it appears that your potential challenge to the will would fall under the no contest clause. What this means, however, is if you file a challenge to the will and convince the court your mother was incompentent or unduly influenced to sign the new will and lose this contest, you will forfeit all of your gifts. If you succeed in overturning the will, no contest clause would have no effect because the estate would be governed by the old will.

Find a local attorney familiar with this area of law, and in particular with will and trust contests, if you want to discuss the matter further.

Re: Is a no-contest clause in a will absolutely binding?

It may be that the entire will is invalid. When someone signs documents under the stress of disease and the influence of medication (especially when the persons who benefit were with her at the time), the will may be declared invalid.

I am assuming here that your mother passed away, otherwise she would be able to change the will.

You need some professional help in this matter.

Re: Is a no-contest clause in a will absolutely binding?

I am somewhat confused as to whether or not your mother is still alive. You must immediately, yesterday, get to an attorney who specializes in probate/estate planning. If your mother is still alive you may wish to institute a conservatorship proceeding and then challenge the new will where the no contest clause would not be effectual. Not challenging the will itself you challenging her competency to make that will during her lifetime. You don't challenge the competency clause you challenge the will itself. The problem is if you fail the competency clause comes into play. That is the case when the party is dead. Which is still alive their may be an exception to that rule applicable to a conservatorship proceeding and her competency of the time of the making of the new will while she is still alive. This is complicated and I don't expect you to understand it but I would think you should at least print this answer and take it with you to the attorney see no impart possibly what questions to ask. Additionally, know that if you wish to set up a conservatorship with you is the Conservatory you're getting get a lot of problems from your sisters. The first thing I would do is see if, with the aid of an attorney, your sisters would compromise any of this situation so that the equal division would still be present, if and when she dies. Now if she has already passed away then it's a whole different ballgame.i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.

Re: Is a no-contest clause in a will absolutely binding?

absolutely. in a nutshell, your mother would have to be of sound mind when exhibiting her testator intent of forming or changing a will. if not, the provision here at issue, if not the entire new will can be challenged despite the no contest clause based on the above legal requirement. if you would like a free phone consultation on this important matter, email us directly today with your contact information.

Re: Is a no-contest clause in a will absolutely binding?

First, thank you for asking your question. In your summary, it is not clear whether your mother has died or not. If she has not died, then the will can be changed without fear of the no contest provision.

If she has died, then the no contest provision comes into play if you were to challenge the will, such as on grounds of lack of testamentary capacity or undue influence. So it is very possible that you could win your 1/4 share or lose it all.

If you are serious in pursuing legal action for yourself or family members, it is extremely important that you find local counsel to assist you. Don't undertake any action without counsel's advise for you may weaken the case for yourself or for your children/brother.

If you want to discuss this further and San Jose is not too far away, please call me at 408-268-2580.

Sincerely,

Kai H. Wessels, Esq.