Circumstances That Can Invalidate a Will

Upon reading the contents of your father’s will, you realize that the language has changed and it does not sound right. If you believe that a will does not accurately reflect the intent of the testator, you may have grounds to contest it. But declaring a will invalid can be a difficult and expensive process, and most challenges are ultimately unsuccessful. A will is not declared invalid solely on the basis of inequity; certain conditions must be met to conclude that the will is not enforceable.

Testator’s capacity. A will can be invalidated if a testator does not possess the required capacity to create a will. The law states that the will maker must possess “testamentary capacity.” This means that the will maker has sufficient mental capacity when executing his will. The testator should (i) understand that he is making a will, (ii) show knowledge of his estate assets, (iii) have a coherent estate plan in place, and (iv) exhibit awareness of the immediate family members who would normally stand to inherit property under the will. The testator’s lack of capacity is one of the most common grounds for challenging a will.

Undue influence. A will that is contested on the basis of undue influence involves a claim that a family member, friend, caretaker or other close acquaintance has persuaded the testator to execute a new will that is favorable to that individual. A showing of undue influence requires you to demonstrate that an individual engaged in duress, coercion or manipulation over the testator which compromised his or her free will with regard to writing the will. California courts analyze a number of factors in determining undue influence. Ultimately a conclusion is based on the evidence. However, an unjust distribution of property alone does not support a finding of undue influence.

Formal requirements. A will must satisfy certain formal requirements to be deemed valid. In California, the will maker is required to sign the will (which must be in writing) in the presence of at least two witnesses, and demonstrate awareness that he is executing his last will and testament. If any of these criteria are not fulfilled, then the validity of the will can be contested.

Dissolving a

Partnership Agreement

Sometimes business ventures do not go as planned. If you are in a business partnership where you share profits with others and you are looking for a change, it may be time to dissolve.  While the process need not be complex, certain administrative and legal steps should be taken to ensure that the partnership is fully dissolved or changed.

Is there a partnership agreement? A written agreement is not required to form a partnership.  For a partnership without a formal agreement, the partner wishing to exit the business needs to give notice to his partner.  If there is a written agreement, then the clauses in the partnership agreement that govern dissolution of the relationship should be carefully reviewed.   Certain agreements designate a specific time to dissolve the partnership.  For example, you can identify a fixed term (such as a number of years) for the partnership or provide that the partnership will dissolve after a specific purpose has been accomplished.  Alternatively, other agreements can specify that if a partner breaches a provision set forth in the agreement, then the partnership agreement is dissolved.  If you decide that dissolution is not the best option, you can opt simply to amend the agreement to revise the balance of control or buy your partner’s total interest in the partnership (or sell your own).

Consult your state’s laws. Review your state’s laws for dissolution and file necessary forms to ensure that neither partner continues to be liable for the partnership’s obligations or has the capacity enter into an agreement on behalf of the partnership. The dissolution forms also give notice of the termination of the partnership to creditors as well as others.

Identify partnership assets/liabilities and settle your accounts. During the dissolution process, it can be helpful to consult a third party to appraise the fair value of business assets to be divided. The next step is to ensure that all liabilities are paid and accounts are closed. The remainder of the assets are allocated in accordance with the partnership agreement, if one exists. Drafting a dissolution agreement can also help resolve these matters if they are not already specified.

Notify other interested parties. All parties that are involved in your business should be notified of the dissolution. This may include employees, customers, vendors, and state and local entities.