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How To Win A Will Contest In California

By Andrew Gold, Esq.

Before you bring a will contest in California, you should know how to win a will contest in California.  Although every case is different and depends on the unique facts and circumstances, there are common rules of thumb and steps to take in every will contest.

How Do I Win A Will Contest In California?

  1. Locate the Will You Are Contesting. The first step in any will contest is to get a copy of the will you are challenging. You need to know what the will says, specifically who is named as a substantial beneficiary under the will.
  2. Determine Standing.  Standing is a requirement of any will contest. Standing means that you benefit from the outcome of the lawsuit. To establish standing, you either have to be a beneficiary in the prior will, or be an intestate beneficiary. For example if the prior will leaves the entire estate to you, and the last will leaves 75% to a caregiver and 25% to you, you have standing to challenge the will.
  3. Determine Your Grounds For Contesting the Will.  A will contest in California can be pursued on many grounds.  These grounds include: lack of proper execution formalities; lack of testamentary capacity; undue influence; fraud; duress; mistake; and, revocation.  Be careful on this step.  For example, if you are pursuing a will contest on the ground that decedent lacked testamentary capacity, you should have some knowledge about decedent’s mental abilities at the time the will was executed.  You do not need to have medical records at this point, as long as you have some first-hand knowledge as to decedent’s competency.
  4. Ask Yourself Why You Might Have Been Disinherited.  Before you pursue a will contest in California, you should ask yourself if the decedent may have had a reason for not including you in the will.  If you can think of a good reason, then so can your opponent, and your chances at a successful will contest decrease.  Did you have a falling out with the decedent?  Were you and the decedent estranged?  Were you simply not very close with the decedent?  Are you very successful, and perhaps some of your siblings are not?  If you cannot think of a reasonable explanation for being disinherited, and you have determined that you have standing to sue, then it is time to go to the court.
  5. File The Petition On Time.  If you do not file your will contest in time, your will contest is over before it ever got started.  As soon as you think you want to contest a will, get a lawyer.  The lawyer will make sure that you do not miss any important deadlines.  You can contest a will in California by objecting to a petition to probate the will.  California law requires that every heir of the decedent is required to receive notice of the hearing to open a decedent’s estate.  Or, you can object after the will has been admitted to probate if you did not receive proper notice.  Make sure that you do not ignore any notices you receive about the probate of the will.
  6. Conduct Discovery. The discovery phase is where you build your case and gather your evidence.  It is important to gather evidence from non-parties.  Non-parties are people and entities like banks and doctors.  Often it is critical to send subpoenas to banks to get decedent’s financial records (to see if there was any exploitation).  Subpoenas can also be sent to hospitals and doctors.  This is critical if you are alleging lack of testamentary capacity.  It is also important to subpoena the file of the drafting attorney that prepared the California will you are contesting.  Often the file will have important information about who set up the appointment, and who was present when the will was executed. Additional discovery crucial in a will contest is discovery to the parties and depositions of the key witnesses.  If you do not gather strong evidence, it is unlikely you will win your will contest.
  7. Refine Your Case.  After discovery is well underway, you will have a better idea of the strengths and weaknesses of your will contest.  Perhaps there are claims you need to add, or ones you need to drop.  It is important to put your best case forward.  Do not proceed on weak claims, since they will take away from your strongest arguments.  You can only win a will contest in California if you pursue your strongest case.
  8. Hire Your Experts. When a will contest goes to trial, most of the time you need an expert.  Generally the expert will be a medical expert to testify on the decedent’s capacity to make a will.  Sometimes you will also have a financial expert, psychologist, or other professional.  An expert can help show how your will contest is strong, and why the California court should decide in your favor.
  9. Try Your Will Contest.  The last step in how to win a will contest in California is to try your will contest!  While results and outcomes are never guaranteed, and most cases resolve out of court, if you have prepared your will contest and gathered your evidence, you will be in the best position possible to win your will contest.  Good luck!

Andrew S. Gold, Esq.

Probate & Trust Litigation

Hourly & Contingency Fees Available


(650) 450-9600



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