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FAQs About Will Contests 

David H. Schwartz, INC Dec. 29, 2022

A last will and testament, commonly referred to simply as a “will,” is a legal document through which the will maker divides his or her assets and designates who should get what. It’s not unusual for squabbles to break out among siblings and other heirs over the terms of a will, especially if the will writer was married more than once and had children from different marriages.  

If you feel shortchanged, can you challenge the contents of the will? To answer this, the first thing to keep in mind is that a will does not take effect until after the death of the will writer when a probate court declares it to be valid and names an executor of the estate, usually the same person named in the will as the personal representative. 

Once a will has been accepted by a probate court and the executor notifies creditors and beneficiaries that the will is being probated, then those with legal standing can challenge the will, and the court will hold a hearing to determine whether the challenge is valid.  

That makes it sound easy, but it’s not so straightforward. There are only a few grounds upon which a challenge can be made, and feeling shortchanged in and of itself is not one of them. 

If you wish to challenge a will in or around San Francisco, California, contact the Law Offices of David H. Schwartz, INC to review the will and evaluate the basis for your challenge.  

Attorney David Schwartz will then help you file your challenge (if it is a valid one) and will represent you in the proceedings. The Law Offices of David H. Schwartz, INC also proudly serves clients in San Jose, Santa Clara, San Mateo, Oakland, and throughout Alameda County. 

Frequently Asked Questions About Contesting a Will 

Who can contest a will in California? 

You must have legal standing to contest a will. This means that you must be named as a beneficiary in the will being probated, or in an earlier version that has been superseded. The only other grounds for legal standing if you have not been named in the will hinges on whether you would stand to inherit under the state laws of intestacy. 

Intestacy means the person died without a will, and intestate succession laws list those who can inherit from the estate. The list starts with the surviving spouse and children. Depending on the circumstances of the decedent prior to passing away, the list can expand to parents, siblings, grandparents, aunts and uncles, and even cousins. 

Is there a time limit for contesting a will? 

There sure is, and it is 120 days from the date that probate is opened. To contest a will, you must file a written, formal objection to the will, stating the legal grounds as to why the will is not valid within that time frame. 

On what grounds can I challenge a will? 

California Probate Code lists the grounds for contesting a will by stating: “The contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” Testamentary intent or capacity refers to the age and mental state of the will writer at the time of making the will. Fraud can mean someone tampered with the will or submitted a fraudulent version. Undue influence will be covered next. 

What is considered undue influence? 

Undue influence generally refers to a would-be beneficiary who gets the ear of the will writer to persuade that person to leave all or more than originally intended to that person. Undue influence can occur when a special relationship exists between the will writer and that person, or when the will writer is of diminished mental capacity and can be easily swayed, which brings up the next question. 

What is considered legal and mental capacity? 

Legal capacity means you must be 18 years or older to create a will. Mental capacity can often present a high legal hurdle in proving. Courts generally won’t acknowledge the argument that the will writer lacked mental capacity because he or she suffers dementia. To prevail in a mental capacity challenge, you must show that the will writer did not meet these standards: 

  • Knew what a will does and that they were creating one, 

  • Understood what they owned, and 

  • Knew who was inheriting their property. 

What is the process for contesting a will? 

As mentioned briefly above, you must submit a petition to the probate court setting forth your grounds for challenging the validity of the will. At the same time, you must send copies to other interested parties, who then have 30 days to submit a response. If they do not submit a response, they cannot participate in the will contest proceedings when the court holds the hearing. 

What happens if the will contest is successful? 

If you win in your challenge to the will, the court will declare it invalid. The court then might just order that the estate be distributed according to the state laws of intestate succession. Alternatively, it might rule an earlier will to be valid. 

Do I need an attorney with me? 

A will contest hearing is also referred to as a trial, and as Abe Lincoln once quipped, “He who represents himself has a fool for a client.” The odds against prevailing in a will contest are long, and you will need all the legal assistance you can get. So, yes, you are advised to have an attorney with you during the proceedings. 

Trusted Guidance for Your Questions 

Before you embark on a will contest, you need to assess all the legal requirements to see whether you have standing as well as a valid reason for making the challenge. It’s not a simple do-it-yourself proposition.  

If you’re thinking of challenging a will in or around the Greater San Francisco Bay Area, contact the Law Offices of David H. Schwartz, INC to evaluate your best options in going forward.