Will Contest Attorney

How to Contest a Will in California

The aftermath of a loved one passing away is often filled with uncertainty, including concerns regarding his or her final wishes. Issues can arise when trying to interpret the intent of deceased loved ones. Parties seeking to change how a decedent’s affairs are handled may be looking to contest a will (also known as voiding a will, disputing a will, or challenging a will). We highly recommend you contact an attorney with knowledge in trusts, estates, and probate before proceeding to contest a will due to the complicated nature of estate litigation.

What is a Will Contest?

A will contest under California law is a formal, legal objection raised against the validity of a will. This contest, usually filed by a will contest lawyer, is based on the contention that the will does not reflect the intent of the party who made the will, known as the testator or decedent, or that the will is otherwise invalid such as failing to meet the proper formalities.

Can I Contest the Will?

In California, a person must have standing to contest a will either through a will contest attorney or on their own. To have standing, a person must be “interested” meaning they stand to benefit or lose something if the will in question was probated. Common contestants are heirs of the estate, beneficiaries under the will, or creditors of the estate. The party who contests the will is called the “contestant.” A will contest can put a lot of strain on family relationships so it is important to consider financial and emotional reasons for pursuing or deciding not to pursue a will contest.

How Does a Will Contest Work?

A will is probated through the County Probate Court in the county in which your deceased loved one resided. A person contesting a will can file an objection with the court to stop the probate of the will. Prob. Code, § 8250. When this occurs, the heirs of the deceased, each person named in the will, and the executor all must be notified. Prob. Code, §§ 8110, 8250. Then, those notified have 30 days to respond to the contest. Prob. Code, § 8250. A will contest trial is decided by a probate judge.

How Long Do I Have to Contest a Will in California?

In California, the deadlines can be strictly enforced. The law provides that: “You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is delivered to you during that 120-day period, whichever is later.” Prob. Code 16061.7. Of course, it is better to be early than late to avoid a statute of limitations issue under California law.

What if the Will Contains a No-Contest Clause?

In California, no-contest clauses are enforced. However, if you have probable cause (good reason) to bring a will contest, then the no-contest clause will likely not be enforced. Prob. Code, § 21310(c). Given the complexity of this topic, it is important to consult with a will contest attorney to understand your rights in relation to a will contest.

Grounds to Contest a Will in California

To contest a will, a party with standing must have valid legal grounds. Merely disagreeing with what you did or did not receive is not sufficient to pursue a will contest. There are certain circumstances under which one can contest a will, including:

  1. The will does not meet the proper formalities,
  2. When the testator lacked capacity at the time of the execution of the will,
  3. If there was fraud in the inducement of, or execution of the will,
  4. If another person exerted undue influence over the testator in the creation of the will, and
  5. The will in whole or in part was executed under duress.

Importantly, a contestant bears the burden of proof for a will contest in California:

(a) At the trial, the proponents of the will have the burden of proof of due execution. The contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. If the will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate.

(b) The court shall try and determine any contested issue of fact that affects the validity of the will.

Prob. Code, § 8252.

Lack of Proper Formalities Will Contest

A will may be contested if it does not meet the proper will formalities in California. As provided by California law:

(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.

(b) The will shall be signed by one of the following:

(1) By the testator.

(2) In the testator’s name by some other person in the testator’s presence and by the testator’s direction.

(3) By a conservator pursuant to a court order to make a will under Section 2580.

(c)

(1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.

(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

Prob. Code, §6110.

Lack of Capacity Will Contest

To contest a will based on lack of capacity, a contestant challenges the Testator’s mental state at the time the will was executed. Essentially, a contestant argues that the decedent (person whose will is in issue) was incapable of understanding that they were creating a will.

California law requires that a Testator satisfy the following requirements at the time the execute their will:

  1. Testator must be at least 18 years old
  2. Testator must be able to understand the extent of their property
  3. Testator must know the natural objects of their bounty—they must know whose interests are affected by the will, who their family is etc.
  4. Testator must know and understand that they are executing a will

A contestant must demonstrate that at least one of the above requirements was not met. If a lack of capacity is found, then the entire will is deemed invalid and all property named in the will will pass through intestate succession Prob. Code, §§ 6100, 6100.5.

Fraud Will Contest

A will may also be contested for fraud. Fraud “consists of false statements, or false pretenses, or the employment of any trick or device or means of deception for the purpose of defrauding another” and these false representations actually induce the action or inaction that is desired Estate of Ricks (1911) 160 Cal. 467, 480, 117.

Undue Influence Will Contest

To contest a will based on undue influence, a contestant claims someone in a position of power took advantage of the Testator by either 1) pressuring them to create a will, or 2) pressuring them to devise a specific item or property to a specific person. The Testator lacks the ability to overcome the influence and if it weren’t for the influence, the Testator would have chosen to do something different. Prob. Code, §86; Welf. & Inst. Code, § 15610.70.

Duress Will Contest

A will written under duress can also be contested as invalid. As a result of duress (i.e. threat of force) a Testator is forced to effectuate a will or provisions of a will they otherwise would not have effectuated. Prob. Code, §6104.

How Much Does it Cost to Contest a Will?

Often times, the cost of contesting a will is determined more by the amount of money and property in dispute than by the merits of the will contest. The larger the estate, the more that parties will generally spend to defend their positions. However, if your goal is to contest a will and win, it may be wise to expect the contest to cost at least $10,000, but perhaps tens of thousands more depending on how vigorously the will contest is opposed.

Federza Zekiri
Trusts, Estates, & Probate Attorney Ferdeza Zekiri
Attorney Scott Talkov
Talkov Law Attorney & President Scott Talkov

Contact an Experienced California Will Contest Lawyer in Los Angeles, San Jose, San Diego, Orange County, San Francisco, Sacramento, Riverside, and Surrounding Areas of California

Whether you wish to contest a will or defend against such a contest in California court, you should consult with an experienced California will contest litigation attorney to discuss your options. For a free consultation with the trust and probate attorneys at Talkov Law, contact (844) 4-TALKOV (825568) or info(at)talkovlaw.com.

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Our trust, probate, and estate attorneys serve clients throughout Los Angeles, Orange County, San Diego, San Francisco, Riverside, Palm Springs, San Bernardino, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, Fresno, and surrounding areas.

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