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Things to Consider When Contesting a Will

Things to Consider When Contesting a Will - Eve MazzarellaContesting a Will

A will is a legal document outlining a deceased person’s wishes after they die and how their assets will be distributed to their beneficiaries. Some beneficiaries will receive specific requests and others will obtain remaining assets divided up as the person chose.  Learn more from Eve Mazzarella about contesting a will.

Beneficiaries or heirs can engage in a will contest during probate and argue that they were improperly excluded or that the will is invalid. However, this probate litigation can be costly and difficult.

Standing to contest

A person must have the standing or interest to dispute a will. These interested parties may contest a will:

  • Beneficiaries named in the will.
  • Beneficiaries named in an earlier will who were not named in its most recent version or whose share was substantially reduced in the latest will.
  • A person who was not named in the will but would be eligible to inherit property under California’s intestacy laws if a will was not drafted.

Reasons for Contesting a Will

In addition to establishing standing, a person must have a good reason to contest a will. Unfairness is not a legal reason to challenge a will.

The first reason that a will may be invalid is that the testator was not mentally competent or had testamentary capacity. The testator, the person who made the will, has testamentary capacity if they were mentally competent when writing the will. They had to understand the consequences of the will, assigning beneficiaries and the nature of their estate.

Undue influence or coercion are other grounds. This occurs when someone takes advantage of the testator and maliciously influences them to bequeath a larger share of their estate.

A will may be contested if it is invalid if it did not comply with California’s legal requirements. These include witness requirements, execution formalities, and compliance with community property laws. Likewise, it may be challenged if it was not signed in all places, text is omitted or there are blank spaces where the names of beneficiaries should be.

A holographic or handwritten will is valid if the signature and its material provisions are in the testator’s handwriting and extrinsic evidence can show testamentary intent. Witnesses are not needed. However, these wills are often challenged.

Parties may contest the most recent version of a will if it did not appropriately revoke all of its earlier versions. There may be confusion if a codicil was drafted that merely amended earlier versions.


There is a limited amount of time to contest a will after notice of probate is issued. Petitions filing a will must be filed with the county probate court within that time.

Challengers should have documents proving their case. They may have to testify at a deposition or in court.

A challenger who prevails may take control of the assets they claimed. Any claimed real property will be transferred to them. But other beneficiaries may appeal.

A person who loses a will challenge may be disinherited from other owed estate property. All parties can negotiate a settlement without going to court.


Testators may take steps to help prevent a challenge. First, they can insert a no-contest clause which will disinherit anyone who files an unsuccessful challenge.

Also, Beneficiaries to trusts and certain retirement accounts receive these assets regardless of what is contained in the will. These accounts are transferred upon death and do not have to undergo probate.

Attorneys can provide options to beneficiaries and heirs in these cases. They can also protect their rights.