Many people use what is known as a last will and testament to provide instructions around whom they’d like to inherit their assets after they die. However, what if your deceased loved one’s will contradicts what you knew to be their true final intentions? Can a will be contested in such a situation? And if so, what are the chances of contesting a will and winning?
Suppose your grandmother had always told you that she would leave you her home, but when you received a copy of her will from the executor of the estate, you were taken aback to learn she left her home to your sibling. You feel your sibling may have engaged in foul play to be left the home. Can you contest a will in this scenario?
Suppose your father remarried in the final year of his life. Just months before his death, he altered his will to leave the entirety of his estate to his new spouse, effectively disinheriting you and your siblings, the sole beneficiaries under his prior will. You suspect your father’s surviving spouse exerted undue influence on your father to cause him to make these sweeping changes to his will. Can you contest a will in this scenario?
The two aforementioned scenarios present common fact patterns in will contests. In the former scenario, it’s possible your sibling manipulated your grandmother into leaving him her home. In the latter scenario, it’s possible your father’s surviving spouse applied excessive pressure on him when he was vulnerable to execute a codicil (i.e., an amendment to a will) that conflicted with his original intentions.
That said, even if the facts surrounding a deceased person’s will raise legitimate doubts about the validity of the document, it doesn’t mean you have an automatic right to contest it. Many variables — everything from your relation to the deceased to why you are seeking to contest the will — could come into play.
Because of how complex contesting a will can be and the unusually low success rates of contesting a will, we recommend that you work closely with a probate attorney throughout the process to secure the best possible outcome for your case.
If you have specific questions surrounding the validity of a loved one’s will and what it would take to contest it, you may benefit from scheduling a free consultation with our knowledgeable legal team.
Can You Contest a Will?
Suppose it’s obvious to you that a will is invalid because the signature on the document does not match the signature of the testator (i.e., the will creator). A simple handwriting analysis could corroborate your suspicions. Can you contest a will in such a circumstance?
While you’re right that a legitimate reason is required for contesting a will, it is not all that’s required. The court will consider many factors when deciding whether or not to grant your will contest petition.
In the following sections, we discuss the range of factors that could affect the success rates of contesting a will. But first, let’s go over what a will contest is.
What Does It Mean to Contest a Will?
A will contest is a type of petition in which the validity of a deceased person’s will is brought under scrutiny. A will contest is filed as part of a court proceeding.
Perhaps the will does not reflect what the deceased person’s family knew to be their final wishes.
Perhaps the will leaves a sizable gift to the drafter of the will — a situation where undue influence generally is presumed.
Perhaps the deceased executed their will at a time when they were believed to be mentally incompetent.
Whether you can contest a will generally comes down to two variables: standing and grounds. We will go into the meaning of both terms in the following sections.
Who Can Contest a Will?
When a deceased person’s will clearly contradicts their true final wishes, their loved ones may feel compelled to challenge it. Out of the love and respect they have for the deceased, they might wish to pursue a will contest even if they do not stand to inherit from the deceased person’s estate. Unfortunately, the court typically would not allow anyone who does not stand to inherit from a deceased person’s estate to bring a will contest.
To bring a will contest, you must have what is known as standing. Standing means you have a financial stake in the outcome of the case.
A simple way to think about standing would be to ask yourself whether you would receive a larger inheritance if the will at issue were invalidated. If your answer is yes, you likely have standing. If your answer is no, you likely don’t have standing.
Parties with legal standing generally are referred to as interested parties. Interested parties in will contests generally include:
- Beneficiaries under a prior version of the will
- The deceased person’s rightful heirs
- The deceased person’s creditors (called creditor beneficiaries)
- The executor of the estate
In the following subsections, we go over the specifics of who can contest a will and who can’t.
Can a Beneficiary Contest a Will?
If an estate beneficiary has standing and a legitimate basis for contesting a will, they generally can proceed with their will contest.
It usually is a requirement for executors to provide beneficiaries, heirs and other interested parties with a copy of the deceased person’s will. If the executor failed to provide these parties with a copy, the parties can always visit the county clerk’s office to secure a copy from there. Wills are public documents, so they almost always will be lodged with the court.
Can a Non-Beneficiary Contest a Will?
There are two circumstances under which contesting a will may be possible as a non-beneficiary.
The first circumstance is if you’re a direct heir of the deceased. If the will in question is the deceased person’s only will, and the will ultimately is invalidated, then the assets being disposed of via the will generally would become part of the deceased person’s intestate estate and be distributed according to California intestate succession laws.
Because you’d be entitled to inherit from the deceased person’s intestate estate as a direct heir, you would have standing to contest the will. That said, you would still need to have a legitimate basis for bringing your contest.
The second circumstance is if you were a beneficiary under a prior version of the deceased person’s will. When a will is invalidated, and a prior valid version of the will exists, that prior will generally will dictate how and to whom the deceased person’s assets should be distributed. Therefore, as a beneficiary under a prior version of the will, you likely would have standing to contest the current will.
Can an Executor Contest a Will?
Determining the success rate of contesting a will is complicated, since most will contests don’t go to trial and are instead are settled outside of court.
In most cases, the chances of successfully contesting a will are relatively low. This is because the court will default to upholding the stated intentions of the decedent unless it’s presented with a compelling reason to not do so. In general, to successfully contest a will, you will need substantial evidence to demonstrate why the will at issue is invalid.
It’s important to be realistic with your goals when pursuing a will contest. For example, if you do not have substantial evidence to support your claim that a decedent’s will is invalid, it may be in your best interest to settle the case at mediation, rather than escalating the case to trial.
Remember, partnering with an experienced will contest attorney can greatly improve your chances of successfully contesting a will.
Can a Non-Family Member Contest a Will?
A non-family member may be able to contest a will if they are named in the will and would receive a larger inheritance by successfully contesting it. That said, they would still need to have a legitimate basis for contesting the will.
In the same vein, a non-family member may be able to contest a will if they were named as a beneficiary under a prior version of the will, since the current will being invalidated could result in their inheriting via the prior will.
While non-family members can find themselves as contestants in will contests, it’s more common for them to find themselves as respondents. This is because gifts made to non-family members tend to raise suspicion among family members, who may believe the non-family member manipulated the testator into leaving them a gift.
If you’re forced to defend a will contest, it’s crucial you work with a skilled attorney to protect your inheritance.
Can a Family Member Contest a Will?
Given the personal nature of a will, it’s often the deceased person’s family members who are most affected by its contents. As such, family members (more specifically, the deceased person’s direct heirs) are the parties who are most likely to contest a will.
It’s important to note that being a family member of the deceased doesn’t automatically entitle you to contest their will.
For example, a sibling of a deceased person, despite their close familial ties to the deceased, would not have standing to contest their will unless the deceased died without a surviving spouse, children or parents, since that would render the sibling the deceased person’s closest living heir according to the order of priority described in California Probate Code sections 6400 – 6455.
Can a Sibling Contest a Will?
Whether your sibling can contest a will depends on whose will it is and on whether they are named in it. Your sibling would also need to have a valid reason for bringing a contest.
If the will belonged to a close relative, such as a parent, your sibling (as long as they’re a direct heir) generally would be able to contest the will. This would hold true regardless of whether or not your sibling is named in the will.
If the will belonged to someone other than a close relative, and your sibling does not qualify as their direct heir, they typically would only be able to contest the will if they are named in either the current will or a prior version of it.
Can a Half-Sibling Contest a Will?
Because California regards half-siblings as full siblings for the purpose of dividing assets, your half-sibling generally would have identical rights to your full siblings when it comes to contesting a will.
Therefore, just like with full siblings, whether your half-sibling can contest a will generally would depend on whose will they are seeking to contest, whether they are named in the will, and what their basis for contesting the will is.
For example, if the will belongs to a parent you share with your half-sibling, your half-sibling (as long as they are your parent’s direct heir) generally would be able to contest your parent’s will.
On the other hand, if the will belongs to your aunt or uncle, and your half-sibling does not qualify as one of their direct heirs, they would only be able to contest the will if they are named in the current will or in one of its prior versions.
Can an Estranged Family Member Contest a Will?
A family member being estranged has no relevance when it comes to their ability to contest a will.
If an estranged family member is a direct heir of the deceased, they generally would be entitled to contest their will. This would hold true regardless of whether or not they were named in the will.
Of course, even if they have standing, they would still need to prove their basis for challenging the will is legitimate.
Can Adult Children Contest a Will?
As direct heirs to their parents’ estate, adult children generally do have standing to contest their parents’ wills.
Keep in mind that minor children generally can’t litigate on their own in California; they would require a parent or guardian to litigate on their behalf if they are seeking to contest a will.
Can Grandchildren Contest a Will?
There are some instances in which a grandchild may be able to contest their grandparent’s will. For example, a grandchild may be able to contest a grandparent’s will if the grandchild’s parent predeceased the grandparent, making the grandchild the grandparent’s closest surviving heir under California intestacy laws.
In this scenario, because the grandchild would inherit under the laws of intestacy if their grandparent died without a will, they would have standing to contest their grandparent’s will, even if they weren’t named in it, so long as they have a valid reason for doing so.
What Are the Grounds for Contesting a Will in California
Why would you contest a will? If a deceased loved one’s will is unusual or surprising in some way, or if it doesn’t reflect what you knew to be their final intentions, these may be valid reasons for challenging the will.
That said, it’s important you take the time to understand on what grounds a will can be contested, as the grounds for challenging a will are very specific to prevent unjustified will contests from making their way into court. In short, if you are bringing a will contest because you believe you are entitled to or deserving of a larger inheritance, this does not qualify as a reason to contest a will.
Because the court usually defaults to upholding the final wishes of the deceased as they are stated in their most current will, successfully challenging a will can be difficult. Nevertheless, if it can be proven the terms of the document are invalid based on one or more recognized grounds for contesting a will, the court may order for the document to be invalidated.
When a will is invalidated, estate assets will either pass to deceased person’s closest surviving heirs in accordance with intestate succession laws or they will pass to beneficiaries under a prior version of the deceased person’s will, so long as that version of the will is valid.
Suppose you are a beneficiary of your deceased grandmother’s estate, but so is your sibling, who, unlike you, failed to keep in touch with your grandmother or help her during the final years of her life. You find it unfair that your grandmother left you and your sibling equal shares of her estate. Does this count as an acceptable reason for challenging a will?
The short answer is no. Unless you can prove with evidence that your sibling engaged in foul play (e.g., undue influence or fraud) to convince your grandmother to leave him a greater share of her estate, you cannot contest a will because you find its provisions to be unfair or because you believe you are deserving of a larger inheritance.
The following are acceptable reasons to contest a will:
- Undue influence: The testator was manipulated or pressured into creating or altering their will.
- Lack of capacity: The testator lacked the necessary mental competence (e.g., due to old age, dementia or mental illness) to create or alter their will at the time they did.
- Fraud: Someone intentionally deceived or misled the testator to have them create or alter their will.
- Forgery: Someone falsified the testator’s signature on their will.
- Lack of due execution: The testator did not abide by established protocols to execute their will.
- Mistake: The testator was mistaken about the nature of the document they were signing (i.e., they didn’t think it was a will).
- Revocation: The testator had intended to revoke their will.
Keep in mind that there is a high standard of proof you’ll be required to meet to successfully invalidate a will. The evidence needed to contest a will typically will depend on your reasons for challenging the document. An attorney can not only help you find compelling evidence, but they can help you convincingly present it to the court.
How Long Do You Have to Contest a Will?
If a significant amount of time has passed since a person’s will was admitted into the probate process, you may be wondering: Is there a time limit to contest a will?
The answer to this question is yes. In California, you have 120 days from the date the will is admitted into probate to file your will contest petition.
It’s worth mentioning that you may be able to file an objection to a will’s admission into probate prior to or at the initial probate proceeding. This approach not only could eliminate the need for a full-blown will contest, but it could be a substantially less expensive than a will contest.
How Much Does It Cost to Contest a Will?
It is impossible to provide an accurate estimate surrounding the cost of contesting a will without knowing more about your case and the will at issue.
For example, if you already have clear and convincing evidence to prove the will at issue is invalid, your will contest may not cost as much as the will contest of a person who has not yet found any evidence. This is because, in the latter scenario, the contestant’s attorney may need to carry out an extensive investigation to prove the contestant’s claim.
If your will contest is successful and it benefited the estate, you may be able to seek an award of your attorney fees and costs from the court after your case has been resolved.
What Is the Success Rate of Contesting a Will?
It is difficult to calculate the success rate of contesting a will, since most will contests don’t go to trial and are instead settled outside of court. However, what we can say with certainty is that will contests can be challenging to win.
In most cases, the chances of successfully contesting a will are relatively low because of the court’s tendency to uphold the stated intentions of the deceased, and because substantial evidence is needed to invalidate a will — evidence that can be difficult to find.
Additionally, the success rate of contesting a will can vary based on your reason for bringing the contest, the quality of the evidence you present, and the jurisdiction in which you initiate your contest.
With this in mind, it is important to be realistic with your goals if you are pursuing a will contest. For example, if you do not have a lot of compelling evidence to support your claim that a deceased person’s will is invalid, rather than escalating the case to trial, it may be in your best interest to settle the case at mediation if the other parties are amenable to such a resolution.
You also should consider partnering with an attorney who has experience in successfully litigating will disputes. While you will still need compelling evidence to win your case, having a knowledgeable attorney in your corner can greatly improve your chances of successfully contesting a will.
How to Contest a Will
If you’ve decided that a will contest is something you’d like to pursue, there are some steps you will need to take to initiate the process of contesting a will.
In the following subsections, you’ll find steps for how to contest a will.
1. Confirm you have standing.
If you are seeking to contest a will, the first step is determining whether you have standing.
To determine whether you have standing, ask yourself whether the will being invalidated would result in you receiving a greater inheritance than the inheritance you currently stand to receive. If so, you likely have standing.
2. Ask yourself what your motive is for contesting the will.
It is important to ask yourself about your motive for contesting a will. Are you contesting a will because you believe you are deserving of a larger inheritance, or is it because you believe foul play or a lack of capacity could have been involved in the document’s creation or execution?
If your motive falls under the former category, your will contest could be denied since you have no legitimate basis for bringing it.
If your motive falls under the latter category, your will contest probably would be granted since you have a legitimate basis for bringing it. If it is, you may wish to go over the will with an attorney, who can discuss next steps with you and help you devise a strategy to win your case..
3. Ask other interested parties if they would like to join your will contest.
If misconduct was involved in the creation or execution of a will, it’s likely that you are not the only one wondering about how to contest the will.
Most people are unaware that having multiple beneficiaries or heirs join their contest could strengthen their case and help offset legal costs.
If a contest has been brought, and a beneficiary or heir declines to participate, they could lose their seat at the negotiating table and possibly even their inheritance. As a result, before making the decision to sit out a contest, it is important for bystander or freeloader beneficiaries, as we like to call them, to discuss their decision to abstain from participating with an attorney.
4. Gather evidence to support your claim.
By this step, you likely have a good idea of the evidence you will need to back up your claim.
Perhaps you are in possession of a prior version of the deceased person’s will, which is drastically different from the current version.
Perhaps someone can testify that the changes to the deceased person’s will are the result of undue influence, fraud or duress.
Perhaps the deceased person’s medical records provide a lens into the deceased person’s mental capacity and state of mind at the time the will was executed.
If you find the idea of evidence-gathering to be overwhelming, know that an attorney can handle this step on your behalf. In addition, they may be able to handle it much more efficiently than you, since they will know what type of evidence you’ll need to prove your case and exactly where to look for it.
5. File a will contest petition.
By this step, you should possess background information, evidence and testimony to support your claim. If you have an attorney, they will use all of this to build a compelling will contest petition to file with the probate court. If you are not working with an attorney, you will need to build a compelling petition on your own.
Will contest petitions are not simple summaries. They should include as many relevant details as possible, as these details are what the court will consider when determining whether or not to grant your petition.
Petitions for will contests generally are filed with the probate court in the county where the deceased person died.
6. Work with your attorney to reach a resolution.
Will contest litigation can drag on for months or even years, which can cause it to drain both your time and resources.
If the parties to a will contest are open to the idea, you could try to resolve the dispute through mediation, which is an informal negotiation held outside of court that involves the parties, their lawyers and a neutral mediator.
Most of the time, a mediation will culminate in a compromise between the parties. If it doesn’t, it may become necessary to proceed to trial.
What You Need to Know About Challenging Non-Standard Wills
Now that we’ve gone over what it takes to contest standard wills, it’s important we discuss what’s required to contest non-standard wills, such as wills that were left unsigned or were handwritten.
Continue reading to learn more about non-standard wills and the process for contesting them.
Can a Will Be Contested if It Is Unsigned?
The short answer is no. This is because a will is already not valid if it has not been signed.
In order for a will to be valid in California, it must be in writing, signed by the testator or another person who is authorized to sign on behalf of the testator, and be witnessed by at least two persons, each of whom signed a written acknowledgment that they witnessed the testator sign their will.
That said, the more complicated answer is that with the help of a skilled probate attorney, an unsigned will can offer leverage.
The landmark California case Estate of Duke established that a will can be reformed if clear and convincing evidence exists to suggest the will contains a mistake in the expression of the testator’s intent and establishes the testator’s actual intent at the time the will was drafted.
In short, if it can be proven that the testator had intended to sign their will but failed to do so because of a mistake, there is a possibility that an unsigned will could hold up in court, and by extension, be contested.
For example, if there are only unsigned copies of a deceased person’s will, but the witnesses who were present during the signing of the will could attest to there being a signed version of the document, the witnesses’ testimony could serve as extrinsic evidence of the deceased person’s intent.
Can a Holographic Will Be Contested?
First, let’s review the definition of a holographic will. A holographic will is a will that is handwritten and signed by the testator. Many states also require the will to be dated.
It is important to look up the laws surrounding holographic wills in your state, as it’s possible your state does not recognize the validity of holographic wills.
To be considered valid in California, a holographic will must meet the following conditions:
- It must be clear that the testator desired for the document to serve as their will.
- The testator should have had testamentary capacity when they drafted the document.
- The entire document (or the material portions of it) must be in the testator’s handwriting.
- The testator must have signed the document.
Going back to the question of whether a holographic will can be contested, it absolutely can be. And because of the semi-informal nature of holographic wills, they may actually be easier to contest than wills that were prepared by an attorney and duly executed.
Still, we recommend that you consult with a probate attorney before moving forward with contesting a holographic will.
Can a Will Be Contested if It Has a No-Contest Clause?
A no-contest clause does not mean that a will cannot be contested; it simply means that if a will contest is unsuccessful in having the will at issue invalidated, the party who brought the contest could potentially lose their inheritance.
However, it is worth noting that in recent years, no-contest clauses have become more difficult to enforce. Still, it is best to consult with an attorney before contesting a will with a no-contest clause to ensure your existing inheritance will not be jeopardized.
Takeaway: Is It Worth Contesting a Will?
Whether it is worth contesting a will depends on the specifics of your situation.
If you were disinherited as a result of someone having unduly influenced the testator to drastically alter their will, then contesting their will could be worth it, so long as you have convincing evidence to prove your case. You are not receiving an inheritance under the current will, so you have nothing to lose by contesting it, even if it has a no-contest clause attached to it.
That said, it would still be wise to discuss your proposed will contest with a qualified attorney to ensure the inheritance you would receive from winning your will contest would exceed how much you’d have to spend to litigate it. Remember, you generally won’t know until after your will contest is resolved whether you will be awarded attorney fees and costs.
We wouldn’t recommend contesting a will if only a few thousand dollars are at stake because your contest would likely cost more than that.
Still, whether it is worth it for you to contest a will is something you ultimately would have to decide for yourself. A probate attorney certainly could help guide you, but only you would know about your financial limitations and time limitations.
How Hard Is It to Contest a Will?
We’re not going to sugarcoat it for you: contesting a will can be hard. That, however, doesn’t mean you shouldn’t pursue a will contest if you have a legitimate reason for doing so.
Contesting a will for legitimate reasons allows you to honor the true intentions of the deceased and, if there was foul play involved, hold the responsible parties accountable. The potential positive outcomes of a successful will contest can be significant and far-reaching.
With that being said, bringing a will contest can be made significantly easier if you choose to work with an attorney. But not only that, your chances of successfully contesting the will could increase as well.
FAQs: Contesting Wills
Now that you understand the basics of contesting a will, take a few minutes to review our answers to your frequently asked questions. If you continue to have questions, we encourage you to request a free consultation with our probate attorneys, who would be more than happy to help.
Can you contest a will without a lawyer?
Yes, you can contest a will without a lawyer, but we would not recommend doing so.
Will contests can be complicated to litigate, even for experienced attorneys. They require you to interpret the terms of a deceased person’s will, prove you have standing to contest the document, gather evidence, file a petition, and then possibly even present your evidence to the court. Without having a background in probate law, it is close to impossible to do all of these things right.
That said, the steps for how to contest a will without a lawyer are no different from the steps for how to contest a will with a lawyer, so if you follow our guide, you will be settling yourself up for success.
Can you contest a will after probate?
While laws can vary by state, a will that has passed through probate generally can still be contested, so long as it has not been more than 120 days since the will was admitted to probate.
Can you contest a will if you’re not in it?
Yes, you can contest a will if you’re not in it under certain circumstances.
Suppose you were a beneficiary under a prior version of the will. Because you potentially could inherit if the will were overturned, this would entitle you to contest the will, so long as you have a valid reason for doing so.
In the same vein, if you are one of the deceased person’s direct heirs, you potentially could inherit if the will were overturned. Hence, you would be entitled to contest it, so long as you have a valid reason for doing so.
Yes, it is possible to contest an entire will. In many instances, it is the only proper course of action. If, for example, the deceased had lacked the capacity to create and sign a will when they visited their estate planner, the whole document should be voided.
Of course, the court would not take your word for it. Documentation from the physicians of the deceased and testimony from persons close to them would likely be required.
Can a codicil be contested?
Yes, changes made to a will in the form of a codicil can be contested. A codicil is a separate legal document that is usually executed at some point after the creation of the original will.
It is entirely possible that the deceased executed their will when they retained capacity and thereafter executed a codicil while in an altered mental state or while subject to undue influence that materially altered its dispositive provisions.
In such a circumstance, it would make sense to challenge the codicil without challenging the validity of the underlying will.
What happens when a will is contested successfully?
If you successfully prove that a will is invalid, the deceased person’s assets generally would pass down according to the provisions set forth by their prior estate planning documents, so long as they were valid.
If the deceased had no prior estate planning documents that were valid, their assets generally would pass to their heirs according to intestate succession laws.
Usually, those who inherit through intestate succession are the surviving spouse and children of the deceased. If the deceased did not have a spouse or children, their siblings and parents generally are given priority.
Can a will be challenged after 20 years?
No, a will cannot be challenged after 20 years. The statute of limitations for contesting a will is 120 days from the date the will is admitted to probate.
Furthermore, 20 years is a long time. The estate of the deceased may have already been distributed, and their assets may not even be available for recovery.
If you plan to contest a will, time is of the essence. You should bring your content as soon as possible after your loved one’s death.
What voids a will?
If you are unsure whether a deceased person intended for their will to be revoked, you may be wondering: What voids a will?
In most cases, destroying a will, modifying it, or creating an entirely new one will do the trick. If a testator modified their will or created a new will to void their previous wills, language should be included in the document that states all prior wills are revoked.
Can you explain how to contest an estate without a will?
Unfortunately, contesting an estate without a will isn’t usually possible. Estates without wills are governed by intestate succession laws, which cannot be contested.
Have questions about how to contest a will and win? We are here to assist.
Contesting a will is no easy feat, nor is it inexpensive or fast. With the help of an attorney, however, the process not only can be streamlined, but your chances of successfully contesting the will can greatly improve.
Our talented legal team, among other things, can take over the burden of finding evidence, building your petition and presenting your case to the court. Whether you are a contestant, heir, executor or respondent, our attorneys are eager to help you achieve your desired outcome.
As a probate litigation firm, will contests are our bread and butter. We can navigate them efficiently and with ease, no matter how complex they are. Call us today to discover how we can help.
