Probate, trust, guardianship and inheritance litigation
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How to Contest a Will in California

By Andrew Gold, Esq.

What Grounds Do You Need to Contest a Will in California?

A will can be contested in a California probate proceeding on the grounds of:

  • Lack of proper execution formalities;
  • Lack of testamentary capacity
  • Undue influence
  • Fraud
  • Duress
  • Mistake
  • Revocation

Lack of Proper Formalities = No Valid Will

A will can be contested in California if it was not created with the property testamentary formalities.  A will in California must be in writing and signed by either (1) the testator or (2) in the testator’s name by some other person in the testator’s presence and by the testator’s direction, or (3) by a conservator pursuant to a court order to make a will under Section 2580.  California Probate Code §6110.  

The will must be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.  If a will was not executed in compliance with the above requirements, the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.    Section 6110 does not require either witness to sign in the presence of the other or of the testator, but does require the witnesses to sign prior to the testator’s death. Estate of Saueressig  (CA 2006).

Lack of Testamentary Intent or Capacity To Make A Will

Under California law, a testator is required to have mental competency to make a will.  An individual is not mentally competent to make a will if, at the time of making the will, either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to do any of the following:

(A) Understand the nature of the testamentary act.

(B) Understand and recollect the nature and situation of the individual’s property.

(C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.  Section 6100.5, California Probate Code.  When a testator suffers from a mental health disorder with delusions or hallucinations, it is not sufficient merely to establish that a testator was the victim of some hallucination or delusion. The evidence must establish that the hallucination or delusion bore directly on and influenced the creation and terms of the testamentary instrument, and that by reason of these hallucinations or delusions, the testator devised his property in a way he would not have done.  A mistaken belief is not necessarily a delusion.

Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.  With strong medical records suggesting a lack of capacity, you increase your chance of bringing a successful will contest in California.

Undue Influence

Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. Welf. & Inst. Code, § 15610.70. The test for undue influence is governed by a series of listed factors set forth in section 15610.70 including:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Direct evidence as to undue influence is rarely obtainable and hence a court or jury must determine the issue of undue influence by inferences drawn from all the facts and circumstances.  As a matter of law, the probate court’s undue influence finding need not be supported by direct evidence of undue influence at the moment decedent signed the trust instruments. Lintz v. Lintz.  Undue influence is a common ground used to contest a will in California.


Sometimes a will is created as a result of fraud.  Representations which are false and are used as pressure upon the mind of the testator to affect the disposition of his property constitute fraud. “If the testator, under a belief of the truth of such false statements, and influenced by them, makes a will disinheriting one who, but for a belief in the truth of such false statements, would otherwise have been provided for in it, the will is the product of fraud on the testator and subject to be declared invalid for that reason.”  In re Estate of Ricks.

For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited.  Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.


A will written under duress, such as by the imposition of threats or injury, is invalid.  Duress has been defined as: An unlawful threat that limits the victim’s independence of judgment or action. Duress is any improper threat or condition, such as coercion, that limits a person’s ability to think or act independently.  A testator under duress feels forced to execute a will that contains provisions or leaves bequests that the testator otherwise would not make.


A will can be challenged or reformed if it contains a mistake in the expression of the testator’s intent.  “An unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.  Estate of Duke.


A will can be revoked two ways in California.  A will or any part thereof is revoked by any of the following:

(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.

(b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.  Cal Prob Code § 6120.

Therefore, if you think a will being offered for or admitted to probate has been revoked by a later will, such revocation can be grounds for a will contest.

What is the Statute of Limitations For Contesting a Will in California?

You can contest a will in California as soon as the person dies by objecting to a petition to probate the will.  After an interested person petitions to open the estate, a hearing on the petition can not occur for at least 15 days. Cal Prob. Code § 8003.  The petitioner has to give notice of the hearing to all of the following persons:

(a) Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner.

(b) Each devisee, executor, and alternative executor named in any will being offered for probate, regardless of whether the devise or appointment is purportedly revoked in a subsequent instrument.  Cal Prob. Code § 8110.

After a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the California court to revoke the probate of the will.  The petition shall include objections setting forth written grounds of opposition.

Is It Hard To Contest A Will?

It is not hard to file a will contest, but winning a will contest is challenging.   The will has the presumption of validity, and challenging it is a high burden.  Therefore, before filing a will contest, you have to make sure that you have considered on what grounds you will be challenging the will.

Rather than alleging all of the various grounds, pick the ones that apply to your situation, and make sure that the circumstances surrounding the preparation and execution of the will are investigated.  It is also important to consider why you were excluded from the will.  If you had a close and loving relationship with the decedent, and were suddenly disinherited when a new caretaker came into decedent’s life, perhaps you have grounds for an undue influence and lack of testamentary capacity challenge.  However, if you were not close to the decedent, and had not seen them in years, you will have a harder time convincing the court that the will should be overturned in your favor.

Andrew S. Gold, Esq.

Probate & Trust Litigation

Hourly & Contingency Fees Available

(650) 450-9600