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Last Updated: November 23, 2024

What Evidence Is Needed to Contest a Will?

Perhaps you want to contest a will because you believe its creator was not of sound mind when they drafted or executed the document. Perhaps you want to contest a will because you suspect someone pressured its creator to alter its terms. Perhaps you want to contest a will because you think someone other than the will creator signed the document. While all of these scenarios for contesting a will are valid, the court won’t invalidate a will based on conjecture alone. It will require evidence.

Discover what evidence is needed to contest a will in this article by Keystone Law Group.

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Many people create an estate planning document known as a last will and testament to instruct how and to whom their assets should be distributed after they die. Unless proven otherwise, the court will always presume a decedent’s will to be valid if it meets the basic requirements of a valid will in California.

It’s easy to understand why this is. If a decedent had made the effort to create a will when they were alive, then chances are they wanted its terms to be carried out exactly as they were written after they died. The court’s job is to ensure their final intentions are honored.

But what if a decedent’s will does not reflect their known final intentions? Will the court enforce its terms anyway? It depends.

A will is subject to the court-supervised probate process, which is used to authenticate the decedent’s will, collect their assets, pay their creditors and ultimately distribute all remaining assets to the estate beneficiaries. If a court has reason to believe a decedent’s will is invalid, it could deny its admission into probate or even revoke its admission after the fact.

Most of the time, if there are potential issues with a decedent’s will, an interested party (a person or entity with a financial stake in the estate) will make the court aware of these issues during the initial probate proceeding or within 120 days of the will being admitted into probate, which is the deadline for contesting a will. Only an interested party can initiate a will contest.

If you wish to contest a will, it is ideal to do so before it’s admitted into probate by attending the initial probate proceeding and objecting in person. However, if you miss the opportunity to object at that time or don’t notice potential issues with the will until later, you can always contest the will after it’s admitted to probate by filing a petition to invalidate a will.

During the early stages of the will contest process, not much evidence is needed to contest the will, as your objection and/or petition will only need to summarize your reasons for believing the will is invalid. If you have evidence to strengthen your case, you certainly can refer to it in your objection and/or petition, but the evidence-gathering stage of litigation doesn’t usually occur until the discovery process, which takes place after the will contest has been filed.

Understanding what evidence is needed to contest a will and working with a skilled will contest attorney to find it is crucial in ensuring your success in court. There are only a few acceptable reasons for contesting a will, and dissatisfaction with the amount of your inheritance is not one of them. Put simply, the court isn’t concerned about the inheritance you want or feel you deserve; rather, it’s concerned about the inheritance the decedent intended to leave you.

In a will contest case, evidence can include the decedent’s most current will, prior versions of their will, their other estate planning documents, medical documentation, financial records, testimony and even written correspondence.

In the following sections, Keystone describes seven acceptable reasons for contesting a will and the type of evidence you’ll need to prove each of them.

TELL US WHAT HAPPENED. WE’LL BE IN TOUCH SOON.

Undue Influence 

In the context of will contests, undue influence refers to excessive pressure, persuasion or manipulation being exerted on a will creator (i.e., a testator) to cause them to create a will or make changes to a will they already had executed.

Unfortunately, the most common perpetrators of undue influence often are the testator’s family members, caregivers and fiduciaries — individuals who hold a position of trust and confidence in the testator’s life. In addition, testators who are vulnerable due to their old age, declining mental competence or physical limitations are more susceptible to undue influence than the average person.

In undue influence cases, the burden of proof generally rests with the contestant, meaning the party bringing the contest must prove with clear and convincing evidence that undue influence played a role in the creation of a will or codicil (i.e., an altered version of the original will) in order to win.

That said, the burden of proof could shift to the respondent when undue influence is presumed. This may happen if a will leaves sizable gifts to parties who are “disqualified” from receiving gifts because of the position they had in the testator’s life, which would have made it easy for them to unfairly influence them.

“Disqualified persons” generally include:

A drafter of a will

A transcriber of a will, or the person who called for its transcription

Fiduciaries

Caregivers

Family members, partners, cohabitants and employees of the above groups

Undue influence can also be presumed where the influencer has a “confidential relationship” with the decedent and actively procures a change to the decedent’s will that unduly benefits them. A confidential relationship can be anything from a fiduciary relationship to a trusting relationship between close family members.

What Evidence Is Needed to Prove Undue Influence?

The evidence needed to contest a will on the basis of undue influence must demonstrate the alleged influencer had both the opportunity and motive to unduly influence the testator, and that the influence drove the testator to act against their own free will.

Proving undue influence can be complex, since most of the evidence will be circumstantial. However, if you can gather sufficient evidence to prove undue influence more likely than not played a role in the creation of a will, you’ll be on the right track.

Examples of the type of evidence needed to prove undue influence:

The decedent’s will and any prior versions of the document showing changes to the will were unusual or unexpected and disproportionately favored the alleged influencer

Communications between the decedent and others demonstrating the decedent’s true testamentary intent

Physical evidence or testimony showing the testator and alleged influencer had a close, confidential relationship

Medical documentation or testimony demonstrating the decedent had been vulnerable to influence because of isolation, illness, dependency or physical limitations

Financial records showing transactions between the testator and alleged influencer that reveal suspicious patterns or schemes

Fraud 

Fraud typically falls under one of two broad categories: fraud in the inducement or fraud in the execution.  

Fraud in the inducement may have occurred if the testator understood they were creating a will, but the terms of the document were the result of their having been misled by someone who ultimately would benefit by the act of fraud.

Fraud in the execution occurs when one party deceives another as to the very nature of the contract they are signing. This type of fraud may have taken place if the testator had been deceived into executing a document containing misrepresented terms or had been lied to about the nature of the document itself.

What Evidence Is Needed to Prove Fraud?

The evidence needed to contest a will on the basis of fraud must demonstrate someone intentionally deceived or misled the testator to create or alter their will. Similar to undue influence cases, fraud cases can be complex to prove since they tend to rely on mostly circumstantial evidence.

Examples of the type of evidence needed to prove fraud:

The decedent’s will and any prior versions of the document showing changes to the will were unusual or unexpected and disproportionately favored the alleged perpetrator of fraud

Written communication, documents or testimony showing certain information may have been misrepresented to the testator or concealed from them

Medical documentation or testimony showing the testator had been vulnerable to fraud because of isolation, illness, dependency or physical limitations

Financial records showing transactions between the testator and alleged perpetrator of fraud that reveal suspicious patterns or schemes

Lack of Capacity

Lack of capacity refers to a testator having lacked the necessary mental competence to create or execute a will at the time they did.

Because wills are generally less complex than other types of contracts, such as trusts, the standard of capacity needed to create a will is not very high. For a will to be valid, the testator must possess what is known as testamentary capacity, or the capacity to create a will.

According to California Probate Code section 6100.5, a testator lacks the necessary capacity to make a will, if at the time of making the will, any of the following is true:

The testator does not understand the nature of the testamentary act (i.e., they are making a will).

The testator does not understand and recollect the nature and situation of their property.

The testator does not remember and understand their relations to living descendants, their spouse and parents, and those whose interests are affected by their will.

The testator suffers from a mental health disorder that causes symptoms of delusions or hallucinations, which result in the testator devising property in a way that, except for the existence of the delusions or hallucinations, they would not have done.

What Evidence Is Needed to Prove Lack of Capacity?

The evidence needed to contest a will on the basis of lack of capacity must demonstrate that at least one of the four conditions indicating lack of capacity, as described in Probate Code section 6100.5, applied to the testator at the time they created or altered their will.

It’s important to remember that even though you may have firsthand knowledge of the testator’s supposed lack of capacity, this alone will not suffice in proving it. In fact, when determining whether the decedent had capacity to execute a will, the court will primarily rely on expert testimony—i.e., testimony provided by a medical professional with experience in evaluating capacity.

Examples of the type of evidence needed to prove lack of capacity:

The decedent’s will and any prior versions of the document showing changes to the will were unusual or unexpected

Medical records showing cognitive decline or mental illness

Witness accounts from family members and friends describing the testator’s behavior and mental state around the time they created or altered their will

Testimony from caregivers or healthcare professionals confirming the testator’s declining cognition

Testimony from expert witnesses confirming that the decedent did not possess the required level of capacity to sign a will.

Forgery 

Does the testator’s signature on a will look like a crude copy? If so, it’s possible a forgery could have taken place.

In legal terms, a forgery refers to someone falsifying a signature, creating a false document or altering a document for their own benefit.

What Evidence Is Needed to Prove Forgery?

The primary evidence needed to contest a will on the basis of forgery is the expert testimony of a handwriting analyst. The analyst will compare the testator’s signature on the will with signatures on other documents that were known to have been signed by the testator. If the signatures don’t align, the will is likely to be invalidated by the court. 

Examples of the type of evidence needed to prove forgery:

The decedent’s will showing the supposed forged signature

Expert testimony from a handwriting analyst comparing the supposed forged signature on the testator’s will to the testator’s signature on other known documents

Witness accounts from anyone who observed the signing of the will or has firsthand knowledge of the will being a potential forgery

Lack of Due Execution 

When a testator fails to follow the established legal protocols for executing a will, it’s considered a lack of due execution.

Probate Code section 6110  requires a will to be signed not just by the testator but also by two disinterested witnesses who are at least 18 years old and in the physical presence of each other.  A disinterested witness is someone who does not stand to inherit from the testator’s estate.

While it is rare for issues with due execution to occur when the signing of a will is supervised by an estate planning attorney, the growing number of people opting to utilize estate planning software to draft and execute their wills has rendered a lack of due execution a common reason why wills are invalidated.

What Evidence Is Needed to Prove Lack of Due Execution?

The evidence needed to contest a will on the basis of a lack of due execution can vary based on the circumstances. For example, if a will was signed in the presence of two witnesses, but both witnesses had a financial stake in the estate, the witnesses could offer testimony to prove they were not disinterested. However, if a will was signed with no witnesses present, evidence may be more challenging to come across.

Examples of the type of evidence needed to prove lack of due execution:

The decedent’s will showing no disinterested witnesses signed the document

Testimony from witnesses, an estate planning attorney or notary who observed the testator signing the will

Mistake 

The margin is narrow for a will to be invalidated on account of a mistake.

The only way to invalidate a will on account of a mistake would be to prove the testator had mistaken the document they were signing to be another type of document. In other words, they did not know they were signing their will into effect.

What Evidence Is Needed to Prove Mistake?

The evidence needed to contest a will on the basis of mistake is not too different from the evidence needed to prove fraud, lack of capacity or even lack of due execution. Basically, you’ll want to demonstrate that the testator did not know they were signing a will. Given that the testator is deceased and cannot provide testimony themselves, this can be difficult to prove.

Examples of the type of evidence needed to prove mistake:

The decedent’s will showing no disinterested witnesses signed the document

Medical documentation and testimony demonstrating the testator was not of sound mind around the time they signed the will

Witness accounts from the testator’s family and friends establishing a pattern of concerning behavior

Physical evidence or testimony suggesting the testator could have been misled about the nature of the document they were signing or that the decedent was simply mistaken about what the document they were signing.

Revocation 

Revocation refers to a testator voiding a will they previously created. A will becomes invalid once it’s revoked.  To effectively revoke a will, a testator must destroy their will, alter their will or create an entirely new will that revokes the former will.

There are many reasons why a testator may choose to revoke their will. For example, the testator may have divorced, remarried or had a child.

If multiple wills surface after a testator dies because they failed to properly revoke prior versions of their will, interested parties may have no choice but to engage in a legal battle to get to the bottom of which will is valid.

What Evidence Is Needed to Prove Revocation?

The evidence needed to contest a will on the basis of revocation must demonstrate the testator’s clear intent to revoke the will in question.

How you should establish the testator’s intent to revoke their will depends on the circumstances surrounding the document. For example, if a testator created a new will after adopting a child, the child’s adoption papers could help establish the testator’s intent to revoke their prior will, which did not include their adoptive child.

Examples of evidence needed to prove revocation:

The will at issue to establish whether the testator intended to revoke it (e.g., by destruction)

The testator’s most current will, which may explicitly state that all prior wills are revoked

The absence of any will, which can demonstrate that the testator intended to revoke their will

Witness accounts from family and friends who heard the testator express their intent to revoke the will

How a Will Contest Lawyer Can Help

It should go without saying that contesting a will is not something you should try to do on your own. A will contest lawyer is needed to guide you through the process.

While the law does not forbid you from contesting a will without help from an attorney, having an attorney by your side can significantly reduce your burden, particularly when it comes to gathering compelling evidence and presenting it to the court.

Continue reading to discover the specific ways a will contest lawyer may be able to help you obtain a favorable outcome in your will contest case.

They can confirm you have standing to contest a will.

To contest a will, you must have standing (i.e., a financial stake in the outcome of the matter).

While determining whether you have standing is generally the easiest step of the will contest process, there are circumstances that could complicate it.

For example, it may not be straightforward to determine whether you have standing if you are a stepchild of the decedent or a half-sibling.

An attorney can examine your relation to the decedent and easily determine whether or not you have standing to contest their will.

They can gather the evidence needed to contest a will.

Determining whether you have the evidence needed to contest a will can be significantly more challenging than determining whether you have standing.

For example, if undue influence played a role in the creation of a will, it may not be readily apparent. Your attorney will have to carefully review the current will, any prior versions of the will and any additional circumstances surrounding the situation to confirm whether someone exerted undue influence on the testator.

In the same vein, it may not be easy to prove a mistake resulted in an invalid will, since the decedent would not be able to confirm or deny whether they had been mistaken about the document they were signing.

Luckily, you won’t have to take on the burden of determining what evidence you’ll need to contest a will if you have an experienced attorney on your team.

They can argue on your behalf in court.

Contesting a will requires you to file a formal petition with the court that details your reasons for challenging a will. It also may require you to argue your position in front of a judge.

Fortunately, your attorney will be experienced in both these arenas. They can help ensure your case is compellingly presented to the court with the proper evidence to prove the will in question is invalid.

They can help resolve your case.

The cost of contesting a will is not insignificant, as it will require a sizable investment of your money and time. Additionally, a will contest can delay when you receive your inheritance. For these reasons, many contestants wish to bypass a trial, opting to instead resolve their will dispute at mediation.

Mediation takes place outside of court. It’s presided over by a neutral third-party mediator, and generally is attended by all the parties involved in the matter and their attorneys. Settling a case at mediation can help you save money, time and energy.

All this to say, there isn’t only one way to resolve a will contest. Your lawyer can discuss with you what you’d like to be the desired outcome for your contest and what you are willing to spend on it. According to your responses, they can devise a legal strategy just for you that aligns with both your needs and your budget.

Want to know whether you have the evidence needed to contest a will? Our attorneys can help.

If you are unsure whether you have the grounds and evidence needed to contest a will in California, Keystone Law Group’s experienced probate attorneys can help.

Our attorneys specialize in probate litigation, and they have years of experience handling complex probate matters for clients across California seeking to challenge a will.

Call us today to request a consultation. We are eager to work with you!

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