Comprehensive Guide on How to Contest a Will in California

Stewart R. Albertson | April 24, 2023 | Trust Contests

When a parent dies, a child who finds out their parent’s will does not treat them similarly to how it treats other heirs may have reason to contest the will in probate court.

Any interested party – not just children of the deceased – can contest a will in California by moving immediately after the death to object to the executor’s petition to probate the will. If probate has occurred, it is possible to contest a will within 120 days of the hearing date. A petition must state objections and set forth grounds for opposing the will as it is written.

A will is presumed to be valid, so a challenge has a high burden of proof. If you think you have grounds for contesting a will in California, you should consult an experienced probate litigation attorney as soon as possible. The probate litigation team at the law firm of Albertson & Davidson, LLP, has earned a reputation for aggressive courtroom skills when handling complex inheritance litigation matters. Our trust and will inheritance lawyers are ready to fight for you if your inheritance is at risk.

The probate litigation lawyers of Albertson & Davidson, LLP, serve clients throughout California from offices in Los Angeles, Bay Area, Orange County, and Silicon Valley.

What Are the Grounds for Contesting a Will in California?

Before taking the steps required to challenge a will in California, you must have the legal grounds to do so and be able to demonstrate the validity of your claim.

You must have standing. That is, you would personally stand to benefit or be affected by the outcome of probating the will. You must also have valid grounds for contesting the contents of the will.

Examples of grounds for challenging a will include:

Lack of capacity – The testator, the person who made the will, must have been of sound mind when signing the will. But medical records and testimony may show that they agreed to change or signed a will while mentally incompetent (such as suffering from dementia), or under the influence of a drug or alcohol. Advanced age, feebleness, or eccentricity are not grounds on their own for a lack-of-capacity claim in California.
Undue Influence – Undue influence is typically some kind of pressure or manipulation applied by someone with a close or extraordinary relationship with the deceased. In some cases, it is a family member, caretaker, or new companion who had taken a close interest in the deceased’s day-to-day welfare while seeking to exclude others. Undue influence could involve persuading the deceased to distribute assets through the will in a manner they would not have otherwise. Evidence would need to show that the deceased was subjected to pressure or manipulation that led them to act in a way that benefitted or damaged a would-be beneficiary.
Fraud – This is some form of deception or fraudulent misrepresentation that caused the deceased to agree to certain provisions in the will that did not reflect their true wishes. The challenge must be supported by proof of fraud, not just evidence of motive or opportunity.
A more recent will – If the deceased had redrafted their will, such as after re-marrying, the newer document would automatically revoke all prior wills (unless it is successfully challenged). A will meant to replace a prior document should explicitly state that it replaces all previous wills, but that is not always the case.
Improper execution – Strict procedural requirements govern the legal execution of a will. It must be in writing, signed by the testator, and attested to and signed by two competent witnesses. If a will does not fully conform to California statutory requirements, it could be ruled invalid.

As your attorneys, Albertson & Davidson, LLP, can help you gather information and locate witnesses to help you be ready to prove your challenge to a will in court.

Who Has Standing and Can Contest a Will in California?

Under California probate law, you must be an “interested party” to have standing to contest a will. Interested parties include:

Any beneficiaries named in the current will or a previous will
A deceased person’s legal heirs under California’s intestacy laws of succession (for example, a spouse, children, parents, and siblings)
The deceased’s unpaid creditors

Steps to Contest a Will in California

If you have grounds for contesting a will in California, Albertson & Davidson, LLP, can handle the process of contesting a will for you, including timely drafting and submitting your petition, helping you gather evidence to prove your claim, and speaking for you in court.

To challenge a will, you must:

Wait for someone to offer the will to be admitted into probate. Under California law, a written will is just evidence of a will until the court admits it to probate.
Once someone files a petition seeking to admit the will to probate, file a petition contesting the will with the county court where the deceased resided before the will is admitted to probate.
Upon receiving notice of a petition for probate regarding a will you want to contest, you must appear at the initial hearing and object to allowing the will into probate. Your attorney may appear with you and speak for you. The court will then allow you time to file a written objection and a will contest complaint.

If a will has been admitted to probate and deemed valid, you have one last chance to contest the will. You must file a petition with the court within 120 days after the probate is opened and ask the court to revoke its order admitting the will to probate. Your petition must state your legal grounds for challenging the will.

What Happens After a Will Is Contested?

estate litigation before a judge If your will contest goes to trial, you must present evidence and witnesses to prove the will is not legally valid under California law. Before then and afterward, there are several stages to litigation in a will contest or other challenges to the administration of a deceased individual’s estate:

Discovery – Discovery is the process of gathering evidence to support your claim that a will is invalid – especially evidence obtained from the opposing side. Discovery is meant to let each side know the facts of the case so they can argue the law in court. Discovery usually helps each side better understand how strong their case is.
Mediation – The court encourages parties to settle disputes outside of court and avoid trials. The judge will order the two sides in a contested will case. In mediation, a specially trained independent third party works with the parties to the dispute to facilitate a resolution of their conflict. A skilled mediator can often find creative solutions, but cannot make or force decisions on either side. If the process produces a compromise acceptable to both sides, the case can be settled without further litigation.
Expert witness depositions – Depositions are sworn statements that witnesses complete as part of discovery. In many cases, we will call on expert witnesses, individuals the court recognizes as experts in their fields who frequently testify in relevant cases. For example, a neuropsychiatrist may review medical records and testify about the deceased’s mental capacity, or a forensic accountant may examine and testify about financial records. Because of the expense required to depose an expert witness, we typically contact them after mediation has failed.
Trial preparation – When a case does not appear likely to settle, we begin to organize the evidence and witness testimony into a logical and compelling narrative that supports the case we are litigating. Trial preparation includes:
- Deciding what evidence to submit to the court
- Organizing exhibits and preparing exhibit lists
- Preparing witnesses to testify
- Subpoenaing third-party witnesses to appear
- Drafting opening and closing statements
- Preparing questions for direct and cross examinations
- Organizing medical and financial records, deposition transcripts, and discovery responses to coincide with witness testimony
- Preparing motions to exclude or admit evidence
- Preparing trial binders for counsel and the court
- Preparing our client for what to expect in court
Trial – At trial, each side presents opening statements to explain what facts, issues and questions are to be considered during the trial. Then the party contesting the will presents their allegations of wrongdoing and why the court should invalidate the will, including evidence and witness testimony. When they have finished, the other side presents its rebuttal. Each side can cross-examine witnesses who have testified for the other side. The opposing side cannot make the plaintiff – the individual who initiated the case – testify but can cross-examine them if they choose to testify. At the end of both presentations, each team of attorneys presents its closing argument to persuade the judge. A judge, not a jury, hears most probate cases.
Verdict – It is possible to settle a case up until the court enters a verdict. We will present any settlement offers to you along with our recommendation. Whether to settle is your choice. If a case is not settled, the judge has 90 days to issue a decision.

Hiring a Estate Litigation Attorney and What to Expect

If you move promptly after a loved one’s death because you know of problems with the will, Albertson & Davidson, LLP, can help you contest the will before it has been admitted to probate. If necessary, we can petition the court to revoke its order admitting a will to probate.

If you do not have a copy of the will or cannot obtain one from the executor of the estate, our first move after conferring with you would be to obtain a copy of the will.

We can then subpoena:

Documents from the estate-planning attorney who established the will or trust
Medical records of the deceased
Estate financial records, which could show improper activity, such as cash withdrawals by a beneficiary or other questionable acts

Our attorneys can review the will and evidence we compiled to support your contest and then consult with you about whether to proceed. Wills can be written with no-contest clauses, which could bar you from receiving anything from the deceased’s estate if your challenge of the will was unsuccessful.

However, if you succeed or even if you demonstrate probable cause to contest the will, it’s unlikely that the no-contest clause would be enforced. On the other hand, if you have been left out of a will, you have nothing to lose by contesting it.

Sometimes, contesting a will is the only way you can stand up for your rights and recover the inheritance you are due. Our probate litigation lawyers are ready to fight for you.

Albertson & Davidson Can Help You Contest a Will

Our founding attorneys, Stewart Albertson and Keith Davidson, are aggressive trust and will inheritance litigators who focus on these types of complex cases. Our compassionate and skilled lawyers have recovered more than $130 million in verdicts and settlements for our deserving probate and estate litigation clients.

Albertson & Davidson, LLP, maintains offices in Los Angeles, Bay Area, Orange County, and Silicon Valley to serve clients throughout California. We stand. We fight. We win.