Will Contests FAQ

California Probate Code Section 8250 permits will contests based on several specific legal grounds. Unlike some jurisdictions that allow contests based on general unfairness, California requires the contestant to establish one or more recognized grounds. The most common grounds include: lack of testamentary capacity, meaning the testator did not have sufficient mental ability to understand the nature and consequences of making a will; undue influence, where someone exerted excessive pressure or persuasion that overcame the testator's free will; fraud, involving intentional deception that caused the testator to execute the will; duress or menace, involving threats or coercion; mistake, such as the testator being mistaken about the contents of the will; revocation, claiming the will was properly revoked before death; improper execution, meaning the will does not meet the formal requirements under California Probate Code Section 6110; and forgery or lack of authenticity.

To successfully contest a will, the contestant must prove their grounds by "clear and convincing evidence," which is a higher standard than the typical "preponderance of the evidence" used in most civil cases. This heightened burden reflects California's strong public policy favoring the enforcement of testamentary intent and discouraging frivolous contests. The contestant cannot simply prove that the will is unfair or that the testator made decisions the contestant disagrees with—there must be proof of a specific legal defect.

California Probate Code Section 8252 provides special rules for contesting holographic wills (handwritten wills), which are valid in California if the material provisions and signature are in the testator's handwriting. Challenges to holographic wills often involve proving the handwriting is not genuine or that material provisions were added after execution. Multiple grounds can be asserted in a single contest, and the contestant needs to prevail on only one ground to invalidate the will or specific provisions.

Under California Probate Code Section 6100.5, a person lacks testamentary capacity if, at the time of executing the will, they do not have sufficient mental capacity to: (1) understand the nature of the testamentary act (meaning they understand they are creating a document that will dispose of their property at death); (2) understand and recollect the nature and situation of their property (they know what assets they own); or (3) remember and understand their relations to living descendants, spouse, parents, and those whose interests are affected by the will (they know who their family members and natural beneficiaries are).

Importantly, the testator must have capacity at the specific moment the will was executed, not at all times before or after. A person can have lucid intervals during which they possess testamentary capacity even if they generally suffer from dementia or mental illness. Conversely, a person who is generally competent may lack capacity at the moment of execution due to temporary factors like medication, delirium, or intoxication. This temporal requirement means that evidence of the testator's mental state immediately before, during, and after the will execution is particularly important.

California law sets a relatively low threshold for testamentary capacity compared to the capacity required for other legal acts like entering contracts or managing complex business affairs. The testator need not have perfect memory or be able to recall every detail of their assets and relationships—they need only general understanding. However, delusions that affect the testamentary disposition can establish lack of capacity. For example, if a testator suffers from a delusion that a child has committed crimes against them (when this is false) and disinherits the child based on this delusion, the will may be invalidated. Medical evidence including diagnoses of Alzheimer's disease, dementia, or other cognitive impairments is highly relevant but not automatically conclusive, as the court must determine whether the specific testator met the three-part test at the time of execution.

Undue influence is one of the most common grounds for will contests in California and occurs when excessive persuasion causes a person to act contrary to their free will and substitutes another person's will for the testator's true testamentary intent. California Welfare and Institutions Code Section 15610.70 defines undue influence comprehensively as involving: (1) the use of the influencer's role and power to exploit the testator's fear, dependency, or trust; (2) the use of affection, intimidation, or coercion; (3) controlling necessaries of life, medications, interactions with others, or access to information; or (4) using health, cognitive, emotional, or developmental vulnerabilities of the testator.

Proving undue influence can be challenging because the influencer's conduct often occurs in private without witnesses. However, California Probate Code Section 86 provides a helpful evidentiary tool: the contestant can raise a presumption of undue influence by proving three elements: (1) the person alleged to have exerted undue influence was in a confidential relationship with the testator (such as caregiver, financial advisor, attorney, or family member with power of attorney); (2) the person actively participated in procuring the execution of the will (such as arranging for the attorney, being present at execution, or driving the testator to the attorney); and (3) the person unduly benefited from the will (received a substantial gift they would not have received under prior wills or intestacy). If these three elements are proven, the burden shifts to the beneficiary to prove by clear and convincing evidence that the transfer was not the product of undue influence.

Courts examine numerous factors to determine undue influence including: the testator's vulnerability to influence based on age, illness, or cognitive decline; the influencer's opportunity to influence due to physical proximity or control over the testator; whether the testator was isolated from family members or other advisors; whether the will provisions are unnatural or surprising given the testator's prior statements and relationships; whether the will differs dramatically from prior estate plans without reasonable explanation; whether the influencer initiated or controlled the will preparation process; whether the attorney who prepared the will was the testator's long-time attorney or was suggested by the influencer; and whether the testator had independent advice. California law recognizes that persuasion, even strong persuasion, is not necessarily "undue" influence—it becomes undue when it overpowers the testator's free will and substitutes the influencer's desires for the testator's true intent.

Under California Probate Code Section 8250, only "interested persons" have standing to contest a will. An interested person is defined in California Probate Code Section 48 as someone who has a financial interest in the outcome of the proceeding—not just a general interest in seeing justice done or protecting the decedent's intent. The key question is whether the contestant would receive a greater inheritance if the will contest succeeds than they would receive under the will being contested.

Persons who typically have standing include: heirs at law who would inherit under California's intestate succession statutes (California Probate Code Section 6400 et seq.) if the will were invalidated, such as children who were disinherited; beneficiaries of a prior will that would be revived if the current will is invalidated; persons who would receive a larger share under a prior will or under intestacy; and in some cases, creditors of the estate who might be affected by the distribution. Importantly, a beneficiary under the contested will generally does not have standing to contest it unless they would receive more under a different scenario.

Standing can be lost if the contestant's share would not increase even if the contest succeeds. For example, if a child challenges their parent's will but would receive the same amount under intestacy or a prior will, they lack standing. California Probate Code Section 8270 requires the contestant to file a formal written contest and prove their standing. Courts strictly enforce the standing requirement to prevent interference by busybodies or persons motivated by purposes other than protecting their own inheritance rights. In cases involving multiple wills, determining standing can be complex and requires analysis of what the contestant would receive under various scenarios—under the contested will, under prior wills, or under intestacy laws.

California Probate Code Section 8270 establishes strict and unforgiving deadlines for filing will contests. The general rule is that a will contest must be filed within 120 days after the will is admitted to probate. This 120-day period begins running from the date the court orders the will admitted to probate, not from the date of death or the date of the first hearing. The deadline is jurisdictional, meaning that a contest filed even one day late will be dismissed, and the court has no discretion to extend the deadline for most reasons.

The 120-day rule applies only if the contestant received proper notice of the petition to admit the will to probate as required by California Probate Code Section 8110. If a person did not receive proper notice, they may have additional time to contest based on California Probate Code Section 8270(b), which provides that if an interested person was not listed in the petition and did not receive notice, they may contest within 120 days after they actually discover or reasonably should have discovered that the will was admitted to probate, subject to a maximum of one year after letters were first issued.

There are very limited exceptions to the 120-day rule. California Probate Code Section 8270(c) permits a contest after the deadline only if: (1) the contestant was a minor or incapacitated person who did not have a legal representative during the 120-day period, or (2) the contestant can prove fraud or mistake by clear and convincing evidence. Even in these exceptional cases, the contest must be filed within a reasonable time after the contestant reaches majority, regains capacity, or discovers the fraud. Because of these strict deadlines, anyone considering a will contest should act immediately. Waiting to investigate, obtain medical records, or consult with attorneys can result in missing the deadline permanently. The prudent approach is to file a protective contest before the 120-day deadline expires, even if the investigation is ongoing, as the contest can be amended later or voluntarily dismissed if it proves unfounded.

A no-contest clause (also called an in terrorem clause) is a provision in a will that penalizes beneficiaries who contest the will or object to specific provisions by revoking their inheritance and reducing their share to nothing or a nominal amount. Testators include these clauses to discourage challenges to their estate plans and to ensure their wishes are honored without costly and time-consuming litigation. For many years, California enforced no-contest clauses broadly, but the law has changed significantly to balance the testator's right to discourage contests against the public interest in invalidating wills obtained through fraud, undue influence, or lack of capacity.

California Probate Code Section 21310 through Section 21315 govern no-contest clauses effective January 1, 2010, for decedents who died after that date. The current law provides that no-contest clauses are enforceable only if the contest or challenge was brought without probable cause. If the contestant had probable cause to bring the contest—meaning a reasonable person would have concluded there was a reasonable likelihood of success—the no-contest clause will not be enforced even if the contest ultimately fails on the merits. This represents a significant protection for contestants who have legitimate concerns about the will's validity.

California Probate Code Section 21311 defines "probable cause" as existing when, at the time the contest is filed, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood that the requested relief will be granted. The court determines the probable cause issue based on the facts and evidence available to the contestant when the contest was filed, not based on hindsight or evidence discovered later. Even if the contest ultimately fails after trial, the no-contest clause will not be triggered if probable cause existed at the filing time. Certain actions are specifically excluded from triggering no-contest clauses under California Probate Code Section 21311, including filing a creditor claim, contesting the character or title of property, conservatorship proceedings, and petitions for instructions under California Probate Code Section 17200. Anyone considering a will contest who is named as a beneficiary should carefully analyze whether probable cause exists before filing, as the stakes are high—losing the contest could result in complete disinheritance.

While both fraud and undue influence can invalidate a will, they are distinct legal concepts with different elements of proof. Fraud in will contests involves intentional misrepresentation or concealment of material facts that causes the testator to execute a will they otherwise would not have made, or to include provisions they otherwise would not have included. The key element of fraud is deception—someone deliberately lied to the testator or hid important information, and the testator relied on this false information in making testamentary decisions.

There are two main types of fraud in will contests: (1) Fraud in the inducement, where the testator knows they are executing a will but is deceived about material facts that influence the content of the will. For example, someone falsely tells the testator that their child has stolen from them or abandoned them, causing the testator to disinherit that child. The testator knows they are making a will but has been deceived about the facts. (2) Fraud in the execution (also called fraud in the factum), where the testator is deceived about the very nature or contents of the document being signed. For example, someone presents a document to the testator claiming it is a power of attorney when it is actually a will, or substitutes pages in a will without the testator's knowledge.

Undue influence, by contrast, does not necessarily involve deception or false statements. Instead, it involves excessive pressure, persuasion, or coercion that overpowers the testator's free will. The influencer may use their position of trust, the testator's fear or dependency, isolation tactics, or psychological manipulation—but not necessarily outright lies. With undue influence, the testator may understand the facts correctly but is not acting on their own free will; someone else's will has been substituted for theirs. A single will can be challenged on both grounds, as fraud and undue influence often work together—for example, a caregiver might lie about family members (fraud) while simultaneously isolating the testator and pressuring them to change their will (undue influence). Both grounds require clear and convincing evidence and can result in invalidation of the entire will or just the provisions obtained through fraud or influence.

Proving lack of capacity or undue influence requires substantial evidence presented through documents and witness testimony. For lack of capacity cases, medical evidence is typically the cornerstone of the contestant's case. This includes medical records from the testator's physicians showing diagnoses of Alzheimer's disease, dementia, stroke, brain injury, mental illness, or other conditions affecting cognition; results from cognitive assessments like Mini-Mental State Examinations (MMSE); medication records showing drugs that impair mental function; hospital records showing delirium or confusion; and expert testimony from physicians, neurologists, or psychiatrists who can explain how the medical conditions affected the testator's capacity to execute a will.

In addition to medical evidence, lay witness testimony is crucial and often more persuasive to juries than medical records. Family members, friends, caregivers, accountants, and others who interacted with the testator around the time of will execution can testify about: specific examples of confusion, memory loss, or irrational behavior; the testator's inability to recognize family members; failure to understand their assets or financial situation; susceptibility to manipulation or suggestion; changes in personality or judgment; and the testator's appearance and behavior when the will was executed. California Evidence Code Section 870 permits lay witnesses to give opinion testimony about a person's mental capacity based on their observations.

For undue influence cases, evidence typically includes: documentation of the relationship between the testator and alleged influencer, particularly confidential relationships like caregiver, attorney-in-fact, or financial advisor; evidence that the influencer isolated the testator from family members, such as refusing visits, intercepting mail or phone calls, or making disparaging comments about family; evidence of the influencer's active role in the will preparation, such as selecting the attorney, arranging the appointment, being present during attorney conferences, or transporting the testator; financial records showing the influencer's control over the testator's finances or dependence of the testator on the influencer; testimony about the testator's fear of or emotional dependence on the influencer; evidence that the will provisions are unnatural or inconsistent with the testator's prior statements and relationships; copies of prior wills showing the testator's longtime intent that differed from the contested will; and evidence that the testator lacked independent advice or was rushed into signing the will. In both types of cases, the attorney who prepared the will is often a critical witness regarding the testator's apparent capacity, independence, and understanding during the will execution.

Yes, will contests can be and frequently are settled through compromise agreements among the parties. Settlement is often beneficial for all involved because will contests are typically expensive, time-consuming, emotionally draining, and uncertain in outcome. California Probate Code Section 11700 specifically authorizes compromises of contested claims in probate proceedings, recognizing that settlement serves the interests of estate administration by avoiding delay and expense while providing certainty to all parties.

In a will contest settlement, the parties typically agree to modify the distribution of the estate assets differently than provided in the contested will. For example, if a child contests a will claiming undue influence by a sibling, the parties might settle by agreeing to distribute the estate equally rather than proceeding with the contest. The settlement may involve the contestant receiving a portion of the estate in exchange for withdrawing the contest and releasing all claims. Settlements can also include non-monetary terms such as agreements about who will serve as executor, how specific personal property will be distributed, or arrangements for ongoing care of dependent family members.

Any settlement of a will contest must be submitted to the probate court for approval under California Probate Code Section 11700. The court conducts a hearing to ensure the settlement is fair and reasonable, entered into in good faith without fraud or undue influence, and in the best interests of the estate and all beneficiaries. The court will review the terms of the settlement, hear from the parties' attorneys, and may question the parties directly about their understanding and agreement. Notice of the proposed settlement must be given to all interested persons who have appeared in the proceeding. If the court approves the settlement, it becomes binding on all parties and is incorporated into the court's order for distribution. The settlement then has the same effect as a final judgment and can be enforced through contempt proceedings if a party fails to comply. Once approved, the settlement generally cannot be set aside except in extraordinary circumstances such as fraud in procuring the settlement itself. Importantly, settling a will contest does not necessarily trigger no-contest clauses, as California Probate Code Section 21311(e) provides specific protections for good faith settlements.

If a will contest is successful and the court finds that the will is invalid, the legal consequences depend on whether the entire will is invalidated or only specific provisions, and whether any prior valid will exists. California Probate Code Section 8226 governs what happens when a will is denied probate or is revoked. If the entire will is invalidated due to lack of capacity, undue influence affecting the whole will, improper execution, or fraud in the execution, the court will deny probate of that will entirely.

When an entire will is invalidated, the estate passes according to one of two alternatives: (1) If the decedent executed a prior valid will that has not been revoked, that prior will is admitted to probate and the estate is distributed according to its terms. California follows the doctrine of "dependent relative revocation" in some circumstances, which can revive a prior will that was revoked based on the mistaken assumption that a new will was valid. (2) If no prior valid will exists, or if all wills have been invalidated, the estate passes through intestate succession under California Probate Code Section 6400 et seq. Intestate succession follows a statutory priority scheme, generally passing assets to the surviving spouse and children, or if none, to other relatives in order of closeness.

Sometimes only specific provisions of a will are invalidated rather than the entire will. This occurs when undue influence or fraud affected only certain gifts or provisions while the remainder of the will represents the testator's true intent. For example, if a caregiver unduly influenced the testator to add a $500,000 bequest to the caregiver but the rest of the will is unaffected, only that provision would be invalidated and removed. The remainder of the will would be probated as written, with the $500,000 passing according to the residuary clause or intestacy if not otherwise disposed of. The successful contestant may also be entitled to recover their reasonable attorney fees and costs from the estate under California Probate Code Section 11003 if the court finds the contest benefited the estate or was necessary to protect the contestant's interests. Finally, if the will contest alleged criminal conduct such as forgery or elder abuse, the successful contest may trigger criminal investigations or civil lawsuits for financial elder abuse under California Welfare and Institutions Code Section 15600 et seq., which can result in additional damages and penalties.