Describes methods to challenge and defend a proposed Will and/or Trust

Long a subject of soap operas and movies, contesting a Will is a much more detailed and difficult process than most people envision. Courts seek to uphold the validity of Wills whenever possible since the deceased person’s wishes are highly regarded by the Court and the Court will only invalidate the Will if the contestant’s evidence is powerful, indeed.

Further, the results of invalidating a Will may be very different than that envisioned by the contestant. Particularly dangerous is encountering a “No Contest” clause in a Will which, essentially, automatically disinherits anyone who seeks to invalidate a Will. Assuming the Will survives the contest, the contestant may have lost the right to inherit anything under that Will! While such clauses are invalid as to various classes of persons and various types of “challenges” to the Will, they have become standard in most Wills and the wise litigant will be most careful in determining the law before leaping into Court.

This article shall briefly describe the basic law and procedures for Will Contests but the reader is advised strongly to obtain competent legal advice before filing any documents with the Court. A separate article on this web site will discuss No Contest clauses in Wills and the effect on the cost benefit analysis of contesting a Will.




a. Who Can Challenge?


Put simply, a Will contest is an effort to invalidate a writing, namely the instrument which has been submitted to the Probate Court purporting to be the Last Will and Testament of a now deceased person.

Any “interested” person may contest a Will, including a heir, devisee, child, spouse, creditor, beneficiary or other person having any property right in or claim against the decedent’s estate that could be affected by the probate proceeding. (Probate Code Section 48 (hereafter “PC”)).

The “executor” is a person nominated in the Will to be in charge of the probate of the Will. Note that a named executor in the Will who will not inherit does not have standing to bring a Will contest. For the general ways a Will works, see our article on Wills and Trusts.

It is vital to note that once a Will is admitted to Probate by the Court, while it may still be contested it is much more difficult and the standing to challenge it is further restricted. It is always preferable for the contestant to challenge the Will prior to it being admitted to probate and, conversely, if you are defending a Will, it is better for you to have the Will admitted to probate as soon as possible and hope the contestants wait until you are successful.


b. Grounds for the Challenge


The execution or revocation of a Will or any part of a will is ineffective to the extent that the execution or revocation was procured by DURESS, MENACE, FRAUD OR UNDUE INFLUENCE (PC 6104). Further, the validity of a Will depends on issues such as competence to make a Will, compliance with execution requirements and revocation and revival of a Will (PC 6100-6124.)


1. Validity and Execution of a Will.

Any individual eighteen years of age or more who is of sound mind may make a Will. (PC 6100 (a)).


A person is not mentally competent to make a Will if, at the time of making the will, either of the following is true (PC6100.5 (a)):

  1. He or she does not have sufficient mental capacity to understand the nature of the testamentary act, or understand and recollect the nature and situation of his or her property or remember and understand his or her relations to living descendants, spouse, and parents and those whose interest are affected by the Will, or

  2. He or she suffers from a mental disorder with symptoms including delusions or hallucinations which delusions or hallucinations result in the person’s devising property in a way that, except for the existence of the delusions or hallucinations, he or she would not have done.


Misreading or misinterpretation of the above criteria has lead far too many to challenge Wills. The Courts do uphold Wills if they can, and if the delusions or hallucinations did not result in the Will being directly affected by such delusions, the Will will stand. Goodman v Zimmerman (1994) 25 Cal. App. 4, 1667. Even a person subject to a conservator ship is not necessarily incapable of making a Will. (PC 1871 c.) One of the writer’s favorite cases involved a man who spoke to mail boxes on a regular basis but was found entirely competent to write his Will since he knew what he owned, who his relatives were and who he wanted to inherit. The Court concluded that speaking to mailboxes did not affect the testator’s ability to write an appropriate Will!

A Will must be in writing, signed by the testator (or someone acting in the testators’ name and presence and by the testator’s direction) and witnessed by being signed by at least two persons, each of whom, being present at the same time, witnessed either the signing of the Will or the testator’s acknowledgement of the signature or the Will and understand that the instrument they sign is the testator’s Will. (PC 6110.)

A Will that does not comply with the above requirements may still be valid as a holographic will, whether or not witnessed, IF the signature and the material provisions are in the handwriting of the testator. (PC 6111 a).

It should be noted that the relatively new PC 21350 generally invalidates provisions in Wills, Trusts and other instruments that purports to make gifts to any of the following persons:

  1. The person who drafted the instrument.

  2. A person who is related by blood or marriage to or is a cohabitant with or employee of the person who drafted the instrument.

  3. Any partner or shareholder of any law partnership or law corporation in which a person described in the first category above has an ownership interest and any employee of any such law partnership or law corporation.

  4. Any person who has a fiduciary relationship with the transfer, including a conservator or Trustee, who transcribes the instrument or causes it to be transcribed.

  5. A person who is related by blood or marriage to or is a cohabitant with or employee of a person described in the category immediately above.

  6. A care custodian of a dependent adult.


The Courts have extensively interpreted the above provisions and advice should be sought if you fall into any of the above categories. For instance, a conservator was held not to have “caused a will and trust to be transcribed for purposes of this rule” when he had called an estate planning company to meet with the conservatee, brought the company’s agent to the conservatee’s house, and wrote a check from the conservatee’s funds for the Will and Trust. Estate of Swetmann (2000) 85 Cal. App. 4th 807.


And there are exceptions to the above restrictions on transfer. The transfer is not invalidated if

  1. The transferor is related by blood or marriage to, or is a cohabitant with the transferee or the person who drafted the instrument;

  2. The instrument is reviewed by an independent attorney who counsels the transferor about the nature of the intended transfer and signed and delivers a CERTIFICATE OF INDEPENDENT REVIEW in the form described in PC 21351 b;

  3. After full disclosure of the relationships of the persons involved, the Court approves the instrument by order under PC 2580 (substitutes its own judgment as to the validity of the transfer);

  4. The transferee is a federal, state or local public entity or 501 C 3 charity.


And there are yet more exceptions…


To contest the validity of the Will the contestant must move quickly if the grounds are advanced under PC 21350. If the transfer contested is by Will, the contest must be filed before an order for final distribution is made. If the transfer contested is made by some instrument other than a Will, it must be commenced within the later of three years after the transfer becomes irrevocable or three years from the date the person bringing the action discovers or reasonably should have discovered the facts material to the transfer. (PC 21356b).


It is vital to get professional advice in writing your Will or seeking to invalidate a Will: do not let the basic outline above substitute for seeking legal guidance in this area: this article is directed to those wishing to know the basics of contesting the validity of a Will.


2. Undue Influence as Grounds to Invalidate a Will.

Undue influence is NOT merely being influential on the testator. “Mere general influence is not enough to invalidate a Will for undue influence.” Estate of Callahan (1967) 67 Cal App 4th 609.

Undue influence is influence that destroys testator’s free agency and substitutes agency of some other person; proof of undue influence requires proof of pressure that overpowered testator’s mind and bore down on testator’s volition. Hagen v Hickenbottom (1995) 41 Cal App 4th 168.

Undue influence arises only if all of the following elements are shown: (1) existence of a confidential relationship between testator and person alleged to have exercised undue influence; (2) active participation by that person in actual preparation or execution of the Will, that conduct not being merely incidental in nature and (3) undue profit accruing to that person by virtue of the Will. Estate of Sarabua (1990) 221 Cal App 3d 599.


3. Duress, Fraud, Menace

These claims are also grounds to invalidate a Will and are often mixed in with undue influence, described above. They are what they sound to be: use of force or threats to compel someone to write a Will in a specific way: in short, while undue influence uses undue persuasion, duress, fraud and menace use various types of threats to accomplish the same ends.



The contestant files a special pleading in the Probate Court to disprove the will. It is a special proceeding created by statute and unknown in the common law.

Quite often there is dispute as to whether a particular pleading is a Will contest since quite often the contestant does not want the pleading so labeled in an effort to avoid the No Contest provisions in a Will. The very question of whether a pleading is a contest is often a matter of complex and prolonged law and motion.

An interested person may contest a Will by objecting to a petition for probate. The objection must be in writing, verified, and filed at or before the hearing on the petition.

If a Will contestant objects to probate of a Will, a summons is issued and served on each heir of the decedent as well as the executor. Notice must be provided to all affected persons, and service of the summons is the same as in any civil suit.

An answer is filed; there is pretrial motions and discovery just as in any other civil action. See our article on The American System of Litigation. There is no right to a jury trial: the Court is the trier of fact. The contestants have the burden of proof. (PC 8252a). Witnesses are called and cross examined just as at a civil trial and the decision of the Court may be appealed.



A Will contest is an adversary pleading, often expensive, often disruptive of family cohesion, but at times vitally necessary to carry out the true wishes of a now deceased relative. Such contests are by no means uncommon despite the No Contest provisions discussed elsewhere on this web site and the key task of the person considering one is to obtain good legal advice quickly and, if appropriate, to file quickly since the longer one waits, the more difficult the contest normally is.

If you are an executor or named executor facing such a challenge, again speed is essential if you are to minimize the chances of a contest. The fact is that the longer one waits to file to probate the Will, the more likely it is that litigation will ensue.

The burden is high to invalidate a Will and the task should not be undertaken lightly. But the Courts are committed to determining if the testator’s wishes are truly being fulfilled by the Will submitted for probate and the challenge, while significant, is far from impossible to meet.

Good, calm and considered advice not only from attorneys but from other members of the family should be sought before taking that step.