Will Contest Petition

PETITION TO CONTEST WILL / OBJECTION TO PROBATE

TABLE OF CONTENTS

1. Caption
2. Introduction and Nature of Proceeding
3. Parties, Jurisdiction, Venue, and Standing
4. Decedent and Identification of Contested Will
5. Timeliness of Contest
6. Factual Background
7. Ground One — Lack of Testamentary Capacity
8. Ground Two — Undue Influence
9. Ground Three — Fraud
10. Ground Four — Duress / Menace
11. Ground Five — Improper Execution / Lack of Due Execution
12. Ground Six — Revocation
13. Ground Seven — Mistake / Lack of Testamentary Intent
14. No-Contest Clause Analysis
15. Prayer for Relief
16. Verification
17. Signature and Service Blocks
18. Certificate of Service
19. Sources and References

1. CAPTION

[STATE / SUPERIOR / SURROGATE'S / COUNTY] COURT OF [____________________]

PROBATE DIVISION

[COUNTY NAME] COUNTY, [STATE]

CASE / FILE NO. [________________________________]

PETITION TO CONTEST WILL AND TO REVOKE PROBATE / OBJECTION TO PROBATE OF WILL DATED [__/__/____]

2. INTRODUCTION AND NATURE OF PROCEEDING

2.1 Petitioner [PETITIONER'S FULL LEGAL NAME] ("Petitioner") respectfully petitions this Court, pursuant to applicable law of the State of [STATE], to:

☐ Deny probate of the purported Last Will and Testament of [DECEDENT'S FULL LEGAL NAME] dated [__/__/____] (the "Contested Will");

☐ Revoke the order admitting the Contested Will to probate entered on [__/__/____];

☐ Revoke the Letters Testamentary issued to [NAMED EXECUTOR] on [__/__/____];

☐ Admit to probate the prior will of Decedent dated [__/__/____] (the "Prior Will"); and / or

☐ Determine that Decedent died intestate and order distribution under the applicable laws of intestate succession.

2.2 The Contested Will is invalid for one or more of the following independent reasons, each fully pled below: lack of testamentary capacity; undue influence; fraud; duress; improper execution; revocation; and/or mistake or lack of testamentary intent.

3. PARTIES, JURISDICTION, VENUE, AND STANDING

3.1 Petitioner

Petitioner [PETITIONER'S FULL LEGAL NAME], an adult resident of [CITY, COUNTY, STATE], is an "interested person" within the meaning of applicable probate law, in that Petitioner is:

☐ A beneficiary named in the Prior Will of Decedent dated [__/__/____] whose share is materially reduced or eliminated by the Contested Will;

☐ An heir-at-law of Decedent who would take by intestate succession if the Contested Will is denied probate (relationship to Decedent: [child / spouse / parent / sibling / other: ________]);

☐ A beneficiary under the Contested Will whose share has been improperly reduced; or

☐ Other interested person: [________________________________].

3.2 Petitioner has a direct, pecuniary, and presently-existing interest in the outcome of this proceeding.

3.3 Respondent

Respondent [PROPONENT'S FULL LEGAL NAME] is the proponent of the Contested Will and the [named Executor / appointed Personal Representative], residing at [ADDRESS].

3.4 Jurisdiction and Venue

3.4.1 This Court has subject-matter jurisdiction over the probate of Decedent's estate and over contests of wills offered for probate.

3.4.2 Venue is proper in this county because Decedent was domiciled in [COUNTY], [STATE] at the time of death and/or because the Contested Will was offered for probate in this Court on [__/__/____].

4. DECEDENT AND IDENTIFICATION OF CONTESTED WILL

4.1 Decedent [DECEDENT'S FULL LEGAL NAME] died on [__/__/____] at [CITY, STATE], aged [__] years.

4.2 At the time of death, Decedent was domiciled at [FULL ADDRESS].

4.3 The Contested Will is a document dated [__/__/____], consisting of [__] pages, purportedly signed by Decedent and witnessed by [WITNESS 1 NAME] and [WITNESS 2 NAME], and offered for probate by Respondent on [__/__/____]. A true and correct copy is attached as Exhibit A.

4.4 Decedent previously executed a will dated [__/__/____] (the "Prior Will"), under which Petitioner was a beneficiary entitled to [describe interest]. A true and correct copy of the Prior Will is attached as Exhibit B.

5. TIMELINESS OF CONTEST

5.1 California (Cal. Prob. Code § 8270): The Contested Will was admitted to probate on [__/__/____]. This Petition is filed within 120 days of that date and is therefore timely.

5.2 Texas (Tex. Estates Code § 256.204): The Contested Will was admitted to probate on [__/__/____]. This Petition is filed within two (2) years of that date and is therefore timely.

5.3 Florida (Fla. Stat. § 733.212(3)): Petitioner was served with the Notice of Administration on [__/__/____]. This Petition is filed within 90 days of service and is therefore timely.

5.4 New York (SCPA § 1410): Petitioner files these objections within the time set by the citation issued [__/__/____], returnable [__/__/____].

5.5 Other Jurisdiction: [Cite statute and recite trigger date and calculation: ____________________________________].

6. FACTUAL BACKGROUND

6.1 At all relevant times before the execution of the Contested Will, Decedent maintained a close and loving relationship with Petitioner and consistently expressed an intention that Petitioner inherit [describe expected disposition].

6.2 Beginning in approximately [MONTH/YEAR], Decedent's physical and/or cognitive condition began to decline. Specifically: [describe diagnoses, hospitalizations, medications, cognitive symptoms, dates].

6.3 During the period from [__/__/____] to [__/__/____], [NAME OF ALLEGED INFLUENCER] ("Influencer") engaged in the following conduct toward Decedent: [describe isolation, control of access, control of finances, control of medical care, control of communications, etc.].

6.4 The Contested Will, executed on [__/__/____], materially departs from Decedent's prior estate plan and from Decedent's repeatedly-expressed testamentary intent in that: [describe specific changes — e.g., disinheritance of Petitioner, inflated share to Influencer, novel beneficiaries, etc.].

6.5 The drafting attorney [NAME, IF KNOWN] was retained, selected, or referred by [NAME OF ALLEGED INFLUENCER], not by Decedent independently.

7. GROUND ONE — LACK OF TESTAMENTARY CAPACITY

7.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

7.2 To execute a valid will, the testator must, at the time of execution, possess the mental capacity to understand:

(a) The nature of the testamentary act being performed;

(b) The nature and extent of the property to be disposed of;

(c) The natural objects of the testator's bounty — that is, those persons (family members and others) who would naturally be expected to receive a share of the estate; and

(d) The manner in which the property is to be distributed under the instrument.

The testator must also be free from any insane delusion that materially affects the disposition.

7.3 On [__/__/____], the date of execution of the Contested Will, Decedent lacked testamentary capacity. Specifically:

7.3.1 Decedent had been diagnosed with [diagnosis — e.g., Alzheimer's disease, vascular dementia, delirium] on or about [__/__/____] by [PHYSICIAN'S NAME]. (Exhibit C — medical records.)

7.3.2 Decedent was prescribed [medications and dosages] on the date of execution, the known cognitive side effects of which include [describe].

7.3.3 Decedent could not recall the names of close family members, was disoriented as to time and place, and/or could not identify the nature and extent of Decedent's property, as evidenced by [witness account, MMSE/MoCA score, etc.].

7.3.4 Decedent was operating under the insane delusion that [describe — e.g., that Petitioner had stolen from Decedent, when no such event occurred], and this delusion materially affected the dispositive provisions of the Contested Will.

7.4 By reason of the foregoing, the Contested Will is invalid for lack of testamentary capacity.

8. GROUND TWO — UNDUE INFLUENCE

8.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

8.2 Undue influence is excessive persuasion that overcomes the testator's free will and results in inequity. Under the Restatement (Third) of Property: Wills and Donative Transfers § 8.3, and under the law of every jurisdiction recognized by this Court, undue influence is established by showing:

(a) A confidential or fiduciary relationship between the alleged influencer and the testator;

(b) Suspicious circumstances surrounding the preparation or execution of the will; and

(c) Active procurement of the will by the alleged influencer.

A presumption of undue influence arises when these elements are shown, shifting the burden of production to the proponent.

8.3 Confidential relationship. At all relevant times, [NAME OF ALLEGED INFLUENCER] stood in a confidential relationship with Decedent as [caregiver / new spouse / agent under power of attorney / drafting attorney / financial advisor / adult child with control of finances], evidenced by [describe].

8.4 Suspicious circumstances. The following suspicious circumstances surrounded the preparation and execution of the Contested Will:

8.4.1 Decedent's vulnerability — age [__], diagnoses set forth in Section 7, dependency on Influencer for [care / housing / transportation / finances];

8.4.2 Influencer's involvement in selecting and communicating with the drafting attorney;

8.4.3 Isolation of Decedent from Petitioner and other family members during the period leading up to execution;

8.4.4 Secrecy surrounding the execution — Petitioner and other family members were not informed of the new will;

8.4.5 A dramatic and unexplained departure from Decedent's long-standing estate plan; and

8.4.6 A result favorable to Influencer that is inequitable in light of Decedent's relationships and prior intentions.

8.5 Active procurement. Influencer actively procured the Contested Will by, among other acts: [describe — selecting the drafter, transporting Decedent to execution, giving instructions to the drafter, being present at execution, paying the drafter's fee, holding the original after execution].

8.6 In California: A statutory presumption of fraud or undue influence arises under Cal. Prob. Code § 21380 because Influencer is a drafter, transcriber in a fiduciary relationship, and/or a care custodian of a dependent adult.

8.7 In Florida: The burden of proof shifts to the proponent under Fla. Stat. § 733.107 and In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), upon Petitioner's showing of substantial benefit, confidential relationship, and active procurement.

8.8 By reason of the foregoing, the Contested Will is the product of undue influence and is invalid.

9. GROUND THREE — FRAUD

9.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

9.2 Petitioner alleges fraud in the [☐ execution] [☐ inducement] of the Contested Will:

9.2.1 Fraud in the execution: Decedent was deceived as to the nature or contents of the document signed, in that [describe — e.g., Decedent was told the document was a power of attorney; pages were substituted after Decedent reviewed an earlier draft].

9.2.2 Fraud in the inducement: Decedent was induced to execute the Contested Will by false statements of material fact knowingly made by [NAME] with intent to deceive, and Decedent reasonably relied on such statements, specifically: [describe false statements, e.g., that Petitioner had abandoned Decedent or had committed misconduct].

9.3 But for the fraud, Decedent would not have executed the Contested Will in its present form.

10. GROUND FOUR — DURESS / MENACE

10.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

10.2 The Contested Will was procured by duress, menace, or coercion, specifically: [describe threats of physical harm, threats to withdraw care, threats of confinement, threats against family members, or other coercive conduct].

10.3 Decedent executed the Contested Will under compulsion that overcame Decedent's free agency.

11. GROUND FIVE — IMPROPER EXECUTION / LACK OF DUE EXECUTION

11.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

11.2 A valid will, in the State of [STATE], must be:

(a) In writing;

(b) Signed by the testator (or by another at the testator's direction and in the testator's presence);

(c) Witnessed by at least two competent witnesses who were present at the same time and who understood the document to be the testator's will; and

(d) Where applicable, accompanied by a valid attestation clause.

11.3 The Contested Will fails to satisfy the statutory formalities in one or more of the following respects:

☐ The signature is not Decedent's signature, or is a forgery (see also Ground Three);

☐ The witnesses did not sign in the presence of Decedent;

☐ The witnesses did not sign in the presence of each other;

☐ The witnesses did not understand the document to be Decedent's will;

☐ The witnesses are interested witnesses without sufficient disinterested witnesses (where required by state law);

☐ Material pages were inserted or replaced after attestation;

☐ The attestation clause is defective or missing; or

☐ Other: [________________________________].

11.4 By reason of these defects, the Contested Will is not entitled to probate.

12. GROUND SIX — REVOCATION

12.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

12.2 The Contested Will was revoked by Decedent prior to death, by one or more of the following acts:

☐ Execution of a subsequent will dated [__/__/____] that expressly revokes all prior wills (Exhibit [__]);

☐ Execution of a subsequent codicil inconsistent with the Contested Will;

☐ Physical destruction (burning, tearing, canceling, obliterating) by Decedent or by another at Decedent's direction with intent to revoke; and/or

☐ Operation of law (e.g., dissolution of marriage under applicable statute).

13. GROUND SEVEN — MISTAKE / LACK OF TESTAMENTARY INTENT

13.1 Petitioner re-alleges and incorporates by reference each preceding paragraph.

13.2 Decedent did not intend the Contested Will to operate as Decedent's last will and testament, or executed it under a mistake of fact material to the dispositive plan, specifically: [describe — e.g., Decedent believed Petitioner had predeceased; Decedent believed the document was a draft for review only].

13.3 But for the mistake or absence of testamentary intent, Decedent would not have executed the Contested Will in its present form.

14. NO-CONTEST CLAUSE ANALYSIS

14.1 The Contested Will [☐ does] [☐ does not] contain a no-contest (in terrorem) clause. The clause, if present, provides: [quote the clause verbatim].

14.2 California — Cal. Prob. Code §§ 21310–21311. A no-contest clause is enforceable only against (i) a direct contest brought without probable cause, (ii) a challenge to a property transfer where the clause expressly so provides, and (iii) a creditor's claim where the clause expressly so provides. "Probable cause" exists if, at the time of filing, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood the requested relief will be granted after further investigation or discovery.

14.3 Texas — Tex. Estates Code § 254.005. A forfeiture provision is unenforceable where the contest is brought (i) in good faith and (ii) with just cause.

14.4 Florida — Fla. Stat. § 732.517. A no-contest provision in a will is unenforceable as a matter of Florida law.

14.5 New York — N.Y. EPTL § 3-3.5. In terrorem clauses are enforceable but subject to statutory safe harbors, including pre-objection examinations under SCPA § 1404, forgery contests, contests on behalf of an infant or incompetent, and certain construction proceedings.

14.6 Petitioner brings this Petition in good faith, with just cause, and based on facts that establish probable cause within the meaning of the applicable statute. Petitioner has documented the factual basis for each ground asserted, including: [medical records, witness statements, drafting-attorney correspondence, financial records]. Petitioner therefore is not subject to forfeiture under any applicable no-contest clause.

15. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully prays that this Court enter an Order:

A. Denying probate of the Contested Will dated [__/__/____];

B. Revoking the order admitting the Contested Will to probate entered on [__/__/____], and revoking the Letters Testamentary issued to [NAMED EXECUTOR];

C. Admitting the Prior Will dated [__/__/____] to probate; or, alternatively, declaring that Decedent died intestate and directing distribution under the laws of intestate succession of the State of [STATE];

D. Appointing a successor personal representative acceptable to the Court, suspending the powers of the current personal representative pending resolution, and directing an accounting;

E. Imposing a constructive trust over assets distributed pursuant to the Contested Will pending resolution of this Petition;

F. Awarding Petitioner attorneys' fees and costs to the extent permitted by applicable law (including, where available, Cal. Prob. Code § 21380(d), § 17211, or analogous statutes);

G. Declaring that this Petition does not trigger any no-contest clause under the applicable statute; and

H. Granting such other and further relief as the Court deems just and proper.

16. VERIFICATION

I, [PETITIONER'S FULL LEGAL NAME], declare under penalty of perjury under the laws of the State of [STATE] that I have read the foregoing Petition; that I am the Petitioner in this proceeding; and that the factual allegations contained herein are true and correct of my own knowledge, except as to those matters stated on information and belief, which I believe to be true.

Executed on [__/__/____] at [CITY, STATE].

[________________________________]
[PETITIONER'S SIGNATURE]

[PETITIONER'S PRINTED NAME]

17. SIGNATURE AND SERVICE BLOCKS

Respectfully submitted,

[________________________________]
[ATTORNEY'S SIGNATURE]

[ATTORNEY'S PRINTED NAME], [BAR NO.]
[LAW FIRM]
[STREET ADDRESS]
[CITY, STATE ZIP]
Telephone: [(___) ___-____]
Email: [________________________________]

Attorney for Petitioner

Dated: [__/__/____]

18. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing PETITION TO CONTEST WILL was served on the following persons by the method indicated:

[________________________________]
[SIGNATURE OF DECLARANT]

19. SOURCES AND REFERENCES

• California Probate Code §§ 48, 6100.5, 6110, 8252, 8270, 21310, 21311, 21380.
• California Welfare & Institutions Code § 15610.70 (undue influence).
• Texas Estates Code §§ 254.005, 256.204.
• Florida Statutes §§ 732.517, 733.107, 733.212.
• New York SCPA §§ 1404, 1410; EPTL § 3-3.5.
• Uniform Probate Code Article III (formal testacy proceedings).
• Restatement (Third) of Property: Wills and Donative Transfers § 8.3 (undue influence).
• In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) (burden-shifting on undue influence).
• Estate of Weber, 229 Cal.App.3d 22 (1991) (standing — pecuniary interest).
• Rice v. Clark, 28 Cal.4th 89 (2002) (presumption of undue influence).