When a deceased person’s will conflicts with their known final wishes — or is otherwise faulty — certain parties may be able to contest the document in an effort to have it deemed invalid.
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 have reason to believe 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 and, just months before his death, 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 may have 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?
These two examples present common fact patterns in will contests. In the former example, it’s possible your sibling manipulated your grandmother into leaving him her home. In the latter example, 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 contradicted his original intentions.
Because of how complex contesting a will can be, we recommend working closely with an experienced will contest attorney throughout the process to secure the best possible outcome for your case.
Can Wills Be Contested?
Provided parties have legal standing and legitimate grounds, wills can be contested. However, keep in mind that the evidence needed to contest a will is substantial, so vague suspicions and unconvincing evidence won’t get you very far.
Suppose it’s obvious to you that the signature on a will does not match the signature of the testator (i.e., the will creator). The testimony of a handwriting analyst generally would be needed to prove the forgery and for your will contest to be successful.
What Does It Mean to Contest a Will?
A will contest is a petition that’s filed as part of a court proceeding in which the validity of a deceased person’s will is brought under scrutiny. If the will contest is successful, the document will be invalidated. If it’s unsuccessful, the document will remain intact.
When a will is successfully invalidated, what happens next depends on whether the deceased person had another will. If they did and the document is valid, it may be used to guide the distribution of their assets to the beneficiaries of the estate. If they didn’t, intestate succession laws will be used to guide the distribution of their assets to their closest surviving heirs.
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, altering or revoking their will.
- Lack of capacity: The testator lacked the necessary mental competence (e.g., due to old age, dementia or mental illness) to create, alter or revoke their will.
- Fraud: Someone intentionally deceived or misled the testator to have them create, alter or revoke their will.
- Forgery: Someone falsified the testator’s signature on their will.
- Lack of due execution: The testator did not comply with a rule for signing 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 intended to revoke their
How Long Do You Have to Contest a Will?
In California, you generally have 120 days from the date the will is admitted into probate to file your will contest petition, per California Probate Code section 8270.
It’s important to remember that the statute of limitations for contesting a will is extremely strict. If you miss it, you could lose your ability to contest the will.
If you plan to contest a trust, the deadline to file generally begins once the trustee provides you with formal notice. You’ll have either 120 days from the date you received notice or 60 days from the date you are provided a copy of the trust — whichever is later — to bring your contest.
Can You Contest a Will Before Probate?
Yes, you can contest a will before the probate process begins. However, instead of seeking revocation of the will’s admission to probate, you would be seeking to proactively block the will from being admitted to probate in the first place.
To contest a will before probate, you can either file a written objection and will contest petition in advance of the initial probate hearing, or you can appear at the hearing to object in person.
Can You Contest a Will After Probate?
Yes, a will can be contested after probate has been granted, so long as it has not been more than 120 days since its admission. That said, laws can vary by state, so it’s crucial you confirm what the rules for contesting wills are where you live.
Can a Will Be Challenged After 20 Years?
In theory, the answer is yes — a will can be contested after 20 years, but typically only if the deceased person’s probate was never opened, and the will was never admitted to probate.
As noted above, if a will has been admitted to probate, it can only be challenged within 120 days of its admittance. In short, time is of the essence. Waiting 20 years to bring a will contest is never recommended.
Who Can Contest a Will?
Only parties with a financial interest in an estate can contest a will. In other words, unless you stand to inherit from an estate or are owed money or property from an estate, you generally would not be permitted to bring a will contest.
ties with legal standing in will contests may include:
- Beneficiaries under the existing will
- 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
How to Contest a Will
If you’ve decided to contest a will, there are some steps you will need to take to initiate the process.
1. Confirm You Have Standing and Legitimate Grounds
If you are seeking to contest a will, the first step is determining whether you have the legal standing and grounds required to bring a will contest.
If the will being invalidated would reinstate or increase your inheritance, you likely have standing. If your inheritance would be reduced or eliminated by the will being invalidated, chances are that you don’t have standing.
Likewise, if your reason for challenging a will has to do with suspicions of foul play or another concerning issue with the document’s creation, execution or revocation — and not personal dissatisfaction with your inheritance — you likely have valid grounds.
2. Recruit Other Interested Parties to Join Your Will Contest (If Applicable)
If misconduct was involved in the creation, execution or revocation of a will, it’s possible you’re not the only one wondering about how to contest the will. Recruiting other beneficiaries or heirs to join your contest could not only strengthen your case, but it could help offset legal costs.
It’s important to note that, if a will contest is 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’s crucial bystander and freeloader beneficiaries, as we like to call them, discuss their decision to abstain from participating with an attorney.
3. File a Will Contest Petition
By this step, you should have a general idea on what ground(s) you are seeking to contest a deceased person’s will. This information should be used to draft your will contest petition.
If you are working with an attorney, they can draft a compelling will contest petition on your behalf. If you are not working with an attorney, you will need to draft a compelling petition on your own.
Will contest petitions are not simple summaries. They should include as many relevant details as possible, as well as supporting evidence.
The will contest petition should be filed in the county where the testator died.
4. Gather Clear and Compelling Evidence to Support Your Claim
The type of evidence you’ll need to successfully contest a will usually depends on your grounds for the contest.
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 diminished mental capacity at the time the will was executed.
If the idea of gathering evidence feels overwhelming, you’re not alone — and you don’t have to take it on yourself. Your attorney can handle this step for you and will likely do so more efficiently, thanks to their experience knowing exactly what kind of evidence is needed and how to obtain it. This allows you to focus on what matters most while your legal team builds the strongest possible case on your behalf.
5. 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 will dispute
through mediation — an informal negotiation involving the parties (and possibly their attorneys) held outside of court and presided over by a neutral mediator.
Most of the time, mediation will culminate in a compromise between the parties. However, if it doesn’t, it may become necessary to proceed to trial.
Is It Worth Contesting a Will?
Whether it is worth contesting a will depends on the specifics of your situation and your chances of successfully contesting a will, which an attorney can help you determine.
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.
That said, it would still be wise to discuss your proposed will contest with a knowledgeable attorney to ensure the inheritance you’d receive by winning would exceed how much you’d have to spend to litigate it. Because of the high cost of contesting a will, we wouldn’t recommend proceeding with your contest if only a few thousand dollars are at stake.
Still, whether it is worth it for you to contest a will is something you ultimately will have to decide for yourself. A probate attorney certainly can help guide you, but only you would know about your financial and time limitations.
FAQs: Challenging a Will in California
If you still are confused about any aspect of contesting a will, check out the frequently asked questions below, which may provide the additional clarity you need. For guidance tailored to your specific needs, we recommend reaching out to our firm directly.
Can a holographic will be contested?
Yes, a holographic will can absolutely be contested in California. 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.
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.
Can a mirror will be contested?
Yes, a mirror will can be contested just like any other will. While mirror wills generally refer to near-identical wills made by spouses or partners, they remain separate legal documents. If there are legitimate concerns with a mirror will, it can be contested on the same grounds any other will can be contested.
What if there is a no-contest clause in a will?
A no-contest clause does not mean that a will cannot be contested; it simply means that if a will contest is unsuccessful, the party who initiated the contest could lose their inheritance.
However, it is worth noting that in recent years, no-contest clauses have become increasingly 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.
The process of contesting a will due to dementia may require you to obtain medical documentation from the deceased person’s treating physician and possibly even their testimony to confirm they lacked mental capacity when they created, executed or revoked their will.
Other than that, the process for contesting a will due to dementia is no different from the process for contesting a will on any other ground.
Do wills have to be notarized in California to be valid?
Wills do not have to be notarized in California to be valid, but they do generally require signatures from two disinterested witnesses
How do I prove undue influence when contesting a will?
To prove undue influence when contesting a will in California, you typically will need to demonstrate 1) the vulnerability of the victim; 2) the apparent authority of the influencer; 3) the tactics used; and 4) an unjust result.
While the process for contesting a will on the basis of undue influence is no different from the general process of contesting a will, proving undue influence can be challenging, so it is ideal to involve an experienced attorney in the process.
Can I 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 will contest petition, and then present your evidence to the court. Without having a background in probate law, it is close to impossible to do all these things right.
That said, the steps for how to contest a will without a lawyer are no different from the steps for contesting a will with a lawyer, so if you follow our guide, you will be setting yourself up for success.
If I contest a will, who pays?
If you contest a will, you should expect to pay for your own contest. In most cases, seeking an award of attorney’s fees from the opposing party is only possible if you win at trial. And as you know, most will contest cases settle long before trial.
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. In this circumstance, it would make sense to challenge the codicil without challenging the validity of the underlying will.
How does defending a contested will work?
Defending a contested will entails disproving the grounds on which the opposing party is contesting a will. In most cases, it is usually the executor who defends the will.
Is contesting probate when there is no will possible?
Unfortunately, contesting probate without a will isn’t usually possible. Estates without wills are governed by intestate succession laws, which cannot be contested.
Still have questions about contesting a will?
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 a favorable resolution can greatly improve.
Our talented legal team can assume 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.
