How to Contest a Will and When You Should

Estate litigation - will contest concept

A last will and testament is a crucial document that distributes an individual’s property in accordance with their wishes when they pass away. If you believe that you were entitled to a larger portion of your loved one’s estate or you were wrongfully excluded from their will, you may have grounds to challenge it. But it’s crucial to understand that a will contest can only be based on specific legal grounds.

Who Can Contest a Will?

Not just anyone can contest a person’s will, regardless of how close they might have been to the testator. To challenge someone’s will, you must demonstrate that you have legal standing to do so. In other words, you have to establish that you are an “interested party” under the law.

Generally, a beneficiary named in the will at issue — or a person named in a previously drafted will — can dispute any of the provisions included in a loved one’s will. They might also have grounds to contest the entire document. In addition, a person who was excluded from the will but would have been entitled to inherit under California’s intestate law can also assert standing. These individuals typically include a spouse, child, or other next-of-kin.

When Can You Contest a Will?

You cannot challenge a will simply because you don’t like some aspect of it or you disagree with the share of the estate left to you. However, a valid will must meet certain legal standards under California law and accurately reflect the wishes of the individual who created it — if it doesn’t, you may have grounds to contest it in probate court. It’s essential to be aware that absent apparent wrongdoing, it can be extremely difficult to prevail in a will contest.

Specifically, an interested party may contest a will in California for the following reasons:

  • The will fails to meet the required formalities — Anyone over the age of 18 can create a will in California. In order for it to be valid under state law, a will must be in writing, and signed by the testator and two witnesses. Alternatively, if the will is not witnessed, it may still be valid if the signature and material provisions are in the testator’s handwriting. If it does not meet the legal formalities, its validity may be challenged.
  • The testator lacked capacity when the will was executed — In California, a testator must be of “sound mind” when executing a will. If they are unable to know what they are signing or they do not have an understanding of their assets, their testamentary capacity may be challenged.
  • Someone placed undue influence on the testator at the time the will was prepared or signed — Undue influence can occur if an individual used coercive tactics or abused their position as a caretaker to influence the terms of the will.
  • The will is fraudulent, or the testator was fraudulently coerced into signing it — There are many wills a will can be fraudulent. For instance, if a will was created by a person other than the deceased or someone provided the testator false information that influenced them to change their will, the document may be contested on the grounds of fraud.
  • The testator signed the will under duress — A will executed under duress by imposing a threat of injury or harm on the testator is invalid. Similarly, a revocation is ineffective if it was procured by duress.
  • The will was revoked by a subsequent will — If a will was voided or revoked by a later document, grounds may exist to contest it.
  • The will contains a mistake — If the will contains a mistake concerning the expression of the testator’s intent, grounds to challenge it may exist.

A will cannot be contested until it is admitted to probate. When a will is filed with the court, a judge will determine whether it is valid. The court will set a hearing date to determine the will’s authenticity — at this time, you may present evidence to contest the will. If you miss the opportunity to raise a challenge regarding the validity of the will at the hearing, you still have 120 days to file a petition to contest the will.

Is a “No-Contest” Clause Valid in California?

No-contest clauses are commonly included in wills to prevent a beneficiary from challenging its terms. They typically state that if a beneficiary contests the will and loses, they forfeit the right to inherit any property bequeathed to them. However, in California, they are only enforceable in limited situations.

Under California Probate Code, a will with a no-contest clause can be enforced in cases involving: (1) a “direct contest” brought without probable cause; (2) a pleading to challenge a transfer of property based on the grounds it wasn’t the property of the transferor at the time it was transferred; (3) the filing of a creditor’s claim or the prosecution of an action based on the claim. Importantly, if you are challenging a will that does not contain a no-contest clause, there is no risk of disinheritance if you do not prevail.

Contact a Knowledgeable California Trusts, Estates, and Probate Attorney

Contesting a will can be challenging and emotionally overwhelming. If you believe that your loved one’s will does not reflect their intentions, or you are entitled to a greater portion of their estate, an experienced attorney can assist you with navigating the legal process. The California probate attorneys at White and Bright have extensive experience working with individuals and their families regarding a wide variety of trusts and estates matters. Call us to schedule a consultation.