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Who Can Contest a Will

Who Can Contest a Will

A last will and testament is a document stating a deceased person’s wishes after they’re dead and is an important part of estate planning containing a legal mandate for how the deceased’s property is to be distributed. 

This includes naming beneficiaries, the people, or organizations you want to inherit your property after you die.  Some beneficiaries will receive specific bequests, and others will receive the remaining assets divided up as the heirs themselves decide.

But what if you are disappointed with your share of the estate?  Can you contest the will?  In this article, we will provide some general guidance relating to who can contest a will and the process to contest a will in California.

If you feel you were wrongly excluded from the will, then you may be able to contest the will. Contesting a will means challenging its terms in probate court, the legal process by which assets are identified, located, valued and eventually distributed, usually with the help of a lawyer.

It's important to note, most contentions are not successful and are a difficult and often expensive legal battle to deal with, so the better prepared you are, the easier it will be to handle contesting a will.

Can You Contest a Will?

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Before moving in the contest process, here are a few considerations to think about.

Can you contest the will?

The first consideration in any will contest is whether or not you can contest the will, because a will contest cannot be filed by just anyone.  In legal terms, you must have the standing to contest the will. This means you must have a legal right to initiate the litigation.

In the case of a will contest in California, only an interested person has standing.  An interested person is someone who stands to benefit or lose something in the litigation.  It usually refers to a legal heir of the estate, a beneficiary under the current will or a previous will, or a creditor of the estate.

Have you missed your timeframe?

You need to consider whether you are acting within the time frame allowable by law.  A will contest can be filed before a petition to probate the estate has been filed or prior to a hearing on the petition if it has already been filed.

If the executor of the will has already filed the petition and the hearing has already occurred wherein the court accepted the will for probate, a contestant only has 120 days from the date of the hearing to contest the will.

Do you have legal grounds?

Finally, do you have the legal grounds to contest the will?  You can't challenge or contest a will simply because you don't like its terms. There are legal reasons for a will contest, and it can be very difficult to prove any one of them.

That translates to a great deal of expense in many cases, from attorney's and expert's fees to court fees.

Legal Grounds for Contesting a Will

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If you are considering contesting a will or seeking to avoid a situation where others are contesting a will made by yourself or another, knowing the basis for contesting can be helpful. Therefore, we will explain some of the most common grounds used by parties when contesting a will below.

Undue influence

This is a claim used when contesting a will that argues another person exercised such control over the testator that free will was lacking when the will document was made.

This has to be of such a nature to overcome the mind of the testator (will-maker) and will be a subjective judgment based on the facts in each situation when contesting a will.

Lack of testamentary capacity

Making this claim when contesting a will asserts that the testator wasn't in his or her right mind in order to be able to properly identify the heirs and/or property of the estate.

For example, a situation for contesting a will may be created when a person creates or makes changes to a will after getting dementia, or in the final stages of death and under the influence of medication.

Those contesting a will on this basis may use medical expert testimony and records to prove that the testator was incapacitated. This is only one example of why it's important not to delay creating a will if you want to minimize the chances of others contesting a will.


An example of contesting a will on this basis could be when a person makes a false claim about an intended heir's criminal wrongdoing to prevent an inheritance or makes a knowingly false promise to induce someone to leave a bequest in the will.


In order to be successful in proving duress as a defense when contesting a will, the duress must be sufficient to overpower the free will of the testator. For example, when contesting a will on the basis of duress, a threat of harm is often required to have been made to the testator in order to force the making or changing of a will.

Not Properly Executed

Contesting a will is possible when the legal requirements for signing aren't met, such as only having one witness when two are required.


A will can be revoked by being destroyed, or it can be revoked by executing a new will that expressly revoked or contradicts the old one.  In the event someone offers a revoked will to the court, any other interested person can challenge it.

If you have standing, believe you have the grounds on which to invalidate the will, and you are within the allowable time frame to initiate the litigation, you can contest a will in California and you should consult with an experienced estate planning attorney immediately to discuss your next step.

Who Can Contest a Will in California?

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Frequently asked questions in contested probate is who can contest a will. The rules as to who can make a claim are quite complex and the best way to get your question answered are to get in touch with an experienced lawyer and provide details of your circumstances.

To have the standing to contest a will, you need to demonstrate that something about how the will was written may be illegal.  While the distribution of assets may have been unfair, you won’t have standing if the will is abiding.

As a general guide, the following groups of people will usually be able to contest a will:

  • Children

  • Spouse

  • Creditors

  • Beneficiaries (including heirs, devisees, and beneficiaries under a trust)

  • Others with a property right in or claim against the testator’s estate may be affected by the will.

Do You Want to Contest a Loved One's Will?  Call Andrea Aston

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If you believe that a will needs to be contested or the will executor is mishandling the will, you need a will contest lawyer to help you protect your rights. With her years of experience Andrea Aston, a lawyer who specializes in this type of probate matter, can help you to find out if you have legal standing and if you have possible grounds.

If you have any questions about the information provided above call today (760) 758-1565. We are prepared to treat your unique situation with the sensitivity and attention to detail it deserves.

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