How Do I Contest a Will?

Many a television or movie showdown involves characters in the show contesting a last will and testament. The reality is that there are times in which contesting a will does prove to be rather the dramatic affair. You may wonder how to go about contesting a will. Bear in mind that the laws regarding contesting a will differ somewhat from one state to another. Thus, for the purposes of illustration and answering this question, California probate law is used.

Common Situations in Wills Are Contested

There are a few more common situations in which a last will and testament is contested. Indeed, there really aren’t many other grounds upon which a will can be contested. These are:

  • The person who signed the will lacked the legal capacity to do so at the time the instrument was executed.
  • The will presented to the court is not the most recent last will and testament created by the deceased
  • The will has not properly been executed
  • The purported will is fraudulent

A person who suffers from certain types of mental impairments is not legally able to create a will in California. In order to have legal capacity to execute a will, a person must understand that he or she is creating a will, must have a general understanding of the nature and extent of his or her assets, and must understand that the will conveys this property to specifically identified people after the individual dies.

A good many people prepare and execute more than one will during the course of their lives. The will presented to the court must be the last valid one executed by the deceased individual. In other words, a will filed with the probate court might be contested because someone maintains a later valid will exists.

A will must be signed in accordance with the mandates of state law. In California, the person making a will must sign it in front of two witnesses. These two people must also sign the will at the same time as witnesses.

Every once in a while, a fraudulent will is presented to the probate court. This can be a purported will that has been completely fabricated. It can also be a will that a person executed under duress or deception.

Who Can Contest a Will in Probate Court?

Only select individuals have the ability to contest a will in probate court. These people are said to have legal standing to contest a will. Typically, these people are:

Heirs named in the will

Heirs at law (legal heirs) not named (or left out of) the will

People named in another will but not in the one filed with the probate court

Other family members of deceased who might not be heirs at law

Time Period for Filing Objection to Will

There is a specific timeframe in which an objection to a will must be filed with the probate court. If the deadline is not met, a person who desires to object to a will may be permanently prevented from doing so. Typically, the deadline for filing an objection is two weeks from the date the last will and testament is filed with the probate court.

Prepare and File an Objection to Will

A formal objection must be prepared and filed with the probate court where the estate case has been commenced. California courts maintain forms that can be used for various purposes, including objecting to a will.

Bear in mind that objecting to a will is a challenging legal endeavor. Thus, most people are well served retaining an experienced probate lawyer for this purpose.

Review Responses to Objection to Will

Once the objection is filed with the court, the executor of the estate (named in the will and appointed by the court) or an attorney representing the estate will have the opportunity to file a response to the objection. Such a response typically sets forth why the executor or attorney for the estate believes the objection to the will is without merit.

Bear in mind that other people may file responses to the objection as well. For example, a person named as an heir in the will being objected to may file a response to that objection.

Will Contest Hearing

Once all of the paperwork has been filed, the probate court will schedule a hearing. At the hearing, the person contesting the will is able to present evidence regarding the objection. This can include documents as well as testimony. Similarly, those who responded to the objection filed with the probate court are also able to present evidence in the form of documents and testimony.

As noted previously, will contests are complicated legal matters. The reality is that very few will contests prove successful in California or elsewhere in the United States. This particularly is the case if a person pursues a will contest without any legal representation.