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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 38451
Experience:  Retired (mostly)
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CALIFORNIA LAWYERS ONLY (probate issue). My mother prepared

Customer Question

CALIFORNIA LAWYERS ONLY (probate issue). My mother prepared a will and trust using an attorney to draft all relevant documents. She did this several years prior to being diagnosed with Alzheimer's dementia. Several years after she was diagnosed with Alzheimer's
dementia and could no longer live independently, a relative dictated the terms of a new will and had the demented woman sign it. The "witnesses" to her signature lied about their addresses when they allegedly witnessed the signing of the will. Obviously they
are perjurers based on that fact alone. The witnesses are dead. Does this perjury affect the validity of the will? If so,how? Applicable cite? What is the proof required for the dementia? Thank you.
Submitted: 1 year ago.
Category: Estate Law
Expert:  socrateaser replied 1 year ago.

Hello...you asked:

Does this perjury affect the validity of the will? If so,how?

A: Perjury is a criminal law term. Only the county district attorney can prosecute a perjury. So, perjury or not, this is not the applicable standard for a "will contest."

In a will contest, each subscribing witness must be produced and examined. If no subscribing witness is “available” to testify as defined by Evidence Code § 240 (e.g., "dead"), the court may admit the evidence of other witnesses to prove the due execution of the will. Probate Code § 8253. The burden is on the person challenging the Will to prove that the witnesses made a false representation concerning the statutory requirements. Probate Code § 6110(c)(1); see also Estate of Saueressig (2006) 38 Cal.4th 1045, 1056.

What is the proof required for the dementia?

A: Under California law, to prove mental incapacity when contesting the validity of a Will, the court must find that: at the time the will was executed, testator suffered from a mental disorder with symptoms including delusions or hallucinations, which resulted in devising his or her property in a way which, except for the delusions or hallucinations, he or she would not have done. Probate Code § 6100.5(a)(2); see Estate of Perkins (1925) 195 C 699, 703-704; Goodman v. Zimmerman (2004), 25 Cal.App.4th 1667, 1678-1679 (decedent's unequal estate distribution to 3 children did not reflect lack of testamentary capacity).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

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Customer: replied 1 year ago.
In order to subpoena the "witnesses", can I serve interrogatories (on the individual that lodged the will that names him executor) requiring the production of the address and phone number of the witnesses (both at the time of the purported execution of the will and currently)? Can I also serve interrogatories on his counsel in that his counsel has made false representations when "advocating" for his client and I need him under oath on a couple of those issues before we go to trial. (And, yes,I will rate you properly as I have done in the past.) Thanks!
Expert:  socrateaser replied 1 year ago.

In order to subpoena the "witnesses", can I serve interrogatories (on the individual that lodged the will that names him executor) requiring the production of the address and phone number of the witnesses (both at the time of the purported execution of the will and currently)?

A: The regular/ordinary rules of discovery found in the Cal. Code of Civil Procedure apply in a probate will contest. You can serve interrogatories on any persons required to be served with notice of hearing on the petition for probate under Probate Code § 8110: i.e., each known and reasonably ascertainable heir of decedent, and each devisee, executor and alternative executor named in the will. Probate Code § 8250(a).

Can I also serve interrogatories on his counsel in that his counsel has made false representations when "advocating" for his client and I need him under oath on a couple of those issues before we go to trial. (And, yes,I will rate you properly as I have done in the past.)

A: If the attorney's client is the decedent, then there are exceptions to the attorney-client privilege where the validity of the will is contested. Evidence Code § 961. If the attorney's client is the personal representative, then while an attorney can be subpoenaed to testify, the attorney cannot be required to testify as to attorney-client privileged communications. Regardless, you cannot serve interrogatories "on" the attorney. You can only subpoena the attorney to testify (either at a deposition or at trial).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

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