California Will Contest Attorney

If you believe a California will is invalid, or you are defending one, a will contest is the court proceeding that decides it. An attorney identifies the legal ground, such as lack of capacity, undue influence, fraud or improper execution, and files an objection before probate or a petition to revoke, generally within 120 days after admission.

Most people facing a will contest in California did not expect to be in court with their own family. A parent signed a new will in the last year of life, a sibling or a caregiver suddenly receives most of the estate, a probate notice arrives naming someone else as executor, and the version of the parent you knew does not match the document in front of you. Or you are the executor named in that will, and a relative is now saying you or someone close to you pressured a sick person into signing it. Either way, the questions are the same: whether the will can be challenged, on what grounds, by when, and what happens to the estate if it falls.

This page explains how will contests work in California probate courts: the two procedural paths, the grounds the law recognizes, how no-contest clauses actually operate, who inherits if a will is set aside, and the remedy California law provides when estate property is taken in bad faith.

What a Will Contest Is Under California Law

A will contest is a formal court proceeding in which an interested person asks a California court to decide that a will, or part of it, is not valid. It is different from a trust contest, which challenges a trust instrument rather than a will and runs on its own deadlines; that dispute is covered in the page on how to contest a trust in California. Many families have both a will and a trust, and a late-life change can touch both, but the two challenges are brought separately.

An "interested person," in plain words, is someone whose rights in the estate depend on whether the will stands, such as an heir who would inherit without it or a beneficiary named in it or in an earlier will.

California law gives a will contest two procedural postures, depending on timing:

• Before the will is admitted to probate. Under Probate Code section 8250, the contestant files an objection to probate of the will. A summons is then issued and served, with a copy of the objection, on the people entitled to notice of the petition for administration. The summons directs those people to file a written pleading in response within 30 days after service.
• After the will is admitted to probate. Under Probate Code section 8270, within 120 days after a will is admitted to probate, an interested person may petition the court to revoke the probate of the will, with written grounds of opposition. That petition is not available to someone who was a party to an earlier will contest, or to someone who had actual notice of a will contest in time to have joined it. A person who was a minor, or who was incompetent and had no guardian or conservator, when the will was admitted may petition at any time before an order for final distribution is entered.

Will contests are heard by the Superior Court of California for the county where the decedent's estate is being probated. The same court that oversees the probate case decides the validity of the will.

Grounds for Contesting a Will in California

At trial, Probate Code section 8252 divides the burden of proof. The people offering the will, called its proponents, must prove due execution. The contestants must prove lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Forgery, where the signature on the will is not the decedent's, is also a recognized challenge. The grounds below are the ones that come up most often, and the list is not exhaustive.

Lack of testamentary capacity. Capacity is measured at the time the will was made, by the elements Probate Code section 6100.5 lists. A person lacks capacity to make a will if, at that moment, the person could not understand the nature of the testamentary act, could not understand and recollect the nature and situation of the person's property, or could not remember and understand the person's relations to living descendants, spouse and parents and those whose interests the will affects. Capacity is also lacking if a mental health disorder with delusions or hallucinations caused the person to leave property in a way the person otherwise would not have. A diagnosis such as dementia does not by itself make a will invalid; the question is whether these elements were met when the will was signed. Medical records, the drafting attorney's file and the accounts of people present usually matter more than a diagnosis label.

Undue influence. Undue influence has the meaning Probate Code section 86 gives it, by reference to the statutory definition in the Welfare and Institutions Code, and that section supplements the common law meaning rather than replacing it. These claims often turn on who arranged the new will, who was present, and how isolated the decedent had become.

The statutory presumption. Probate Code section 21380(a) presumes that a provision making a gift is the product of fraud or undue influence when it benefits certain people, including:

• the person who drafted the instrument;
• a person who transcribed the instrument, or caused it to be transcribed, while in a fiduciary relationship with the decedent;
• a care custodian of a decedent who was a dependent adult, but only if the instrument was signed while the care custodian provided services, or within 90 days before or after that period;
• and certain relatives, cohabitants, employees and law-firm associates of those people, as the section describes.

The presumption shifts the burden of proof: the person receiving the gift may rebut it by clear and convincing evidence that it was not the product of fraud or undue influence. For a gift to the drafter, or to the relatives, cohabitants, employees and law-firm associates section 21380(c) ties to the drafter, the presumption is conclusive and cannot be rebutted. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. The presumption does not reach every gift to a caregiver, relative or helper; it applies only to the people the statute names, in the circumstances it describes.

Fraud. A will procured by fraud, such as a false statement that led the decedent to cut someone out, is open to challenge.

Improper execution. Under Probate Code section 6110, a will generally must be in writing, signed by the testator (or for the testator, in the testator's presence and at the testator's direction), and witnessed by at least two people who were present at the same time and understood the document was the testator's will. A will that misses the witnessing requirement may still be treated as valid if its proponent proves by clear and convincing evidence that the testator intended it to be the testator's will, so a defect in execution does not end the inquiry automatically.

No-Contest Clauses and When They Apply

Many people reasonably assume that a will with a no-contest clause cannot be challenged without losing their inheritance. A no-contest clause is a provision stating that a beneficiary who challenges the document forfeits a gift under it. Under Probate Code section 21311(a), such a clause may be enforced only against these contests:

1. A direct contest brought without probable cause.
2. A pleading challenging a transfer of property on the ground that it was not the transferor's property at the time of the transfer, but only if the clause expressly says it applies to that kind of challenge.
3. The filing of a creditor's claim, or prosecution of an action based on it, but only if the clause expressly says so.

Probable cause, under section 21311(b), exists if, 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 the requested relief will be granted after an opportunity for further investigation or discovery.

In practical terms, a beneficiary who brings a direct contest with probable cause does not trigger the clause, even if the contest ultimately does not succeed. The clause is a real consideration, and the facts known at filing are what determine it, but it does not always disinherit anyone who challenges a will. For an executor defending a will, the same standard frames whether the clause can be enforced against a contestant.

Who Inherits When a Will Is Found Invalid

Setting aside a will does not leave the estate without a plan. If no other valid will exists, the estate passes under California's intestate succession laws, which distribute property to the decedent's closest relatives in an order California law sets. If a prior will exists, the court may admit that earlier will to probate once the later one is invalidated.

When competing wills are offered, Probate Code section 8252 directs the court to decide first whether the later will is entitled to probate. That sequence matters to everyone in the family, because the person challenging a late-life will is often relying on an earlier version that treated them differently.

Which result follows depends on what other testamentary documents exist and whether they are valid themselves; the court decides that question. A partial result is also possible, where only a challenged provision falls. Families sometimes discover during a contest that an earlier will has its own problems, which is one reason the full history of the decedent's documents matters.

The Will Contest Process in California Courts

The proceeding begins with the filing that fits its timing. Before admission, an objection to probate under Probate Code section 8250 starts the contest, and a summons is served with it on the people entitled to notice; they have 30 days after service to file a written response. After admission, a petition to revoke under Probate Code section 8270 must generally be filed within 120 days, subject to the exceptions described above. The two windows are separate, and missing the first does not necessarily close the second.

The person named as executor in the will has no duty to defend a contest until appointed personal representative, under section 8250(b). An executor facing a challenge before appointment is in a different position from one already serving.

The case proceeds in the Superior Court of California for the county where the estate is pending. Contested probate matters typically move through discovery, where each side obtains documents and testimony such as medical records, the drafting attorney's file and witness depositions; then evidentiary hearings and, if the matter does not resolve, trial. Under section 8252(b), the court tries and decides any contested issue of fact that affects the validity of the will.

The outcomes the court may reach include admitting the will, denying it probate, admitting a prior will, or revoking a probate already granted. Some will contests also run alongside related trust litigation, such as a petition about the internal affairs of a trust when the decedent also had a trust.

Readers who want a procedural orientation to California probate court generally can find it on the California Courts Self-Help Guide.

Double Damages and Attorney's Fees for Bad-Faith Property Misconduct

Disputes over a will often come with a second accusation: that someone moved money or property before or after the death. Probate Code section 859 addresses that. If a court finds that a person has in bad faith wrongfully taken, concealed or disposed of property belonging to a trust or a decedent's estate, or has taken, concealed or disposed of it by undue influence in bad faith or through elder or dependent adult financial abuse, that person is liable for twice the value of the property recovered by an action under that part of the Probate Code.

The court may also, in its discretion, order the person liable under that section to pay reasonable attorney's fees and costs, except as other law requires. Neither double recovery nor fees is automatic. The court must make the required finding about how the property was taken, concealed or disposed of, and fees remain a matter for the court's judgment. The remedy adds to other available remedies rather than replacing them.

For a family member accused of this conduct, the same finding requirement is the center of the defense: a dispute over who was entitled to property is not the same as a finding of bad-faith wrongful taking. The broader set of trust remedies, including compelled accountings and trustee removal, is covered on the page about California trust litigation.

What This Site Covers

This site focuses only on disputes: will contests, trust contests, executor and trustee misconduct, and contested inheritances. It does not address estate planning, drafting or amending a will or trust, or estate and trust administration where nobody disputes anything. A reader who simply needs a will prepared, or help administering an estate the family agrees on, is looking for a different kind of resource.

Through this site, a reader may request a consultation about a will contest. Readers who want to confirm an attorney's license status can do so through the State Bar of California.

Discussing a Will Contest in California

A will contest turns on details that are easy to lose: the date the challenged will was signed, who drafted it and who was in the room, the decedent's medical condition at that moment, any earlier wills, the date of admission to probate, and whether a no-contest clause is in play. An attorney who reviews those documents and dates can say which procedural path and deadline apply and how the grounds fit the facts. This page explains how the law works; it does not decide whether a particular disagreement over a will is a valid contest, and not every unexpected will is an invalid one. To discuss a will dispute like this with an attorney, you may request a consultation about your dispute through California Trust Litigation Lawyers.