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9. How Does A Will Contest Work? The California Probate Code provides that "any person interested" may contest a will either before the hearing where the will is admitted to probate or within 120 days after the will has been admitted to probate by the court. A will may be contested by an heir who is a person that is related to the decedent in such a manner that if the will did not exist, that person would inherit the property. For example, if the decedent leaves money to a "friend" and the children of the decedent contest the will and win, the will would not exist and the children would inherit the estate by intestate succession (see that section) as the decedent's closest heirs. Also, a beneficiary (a person named in a will to receive the assets of the estate) under an earlier will under certain circumstances may also contest a will. In the same situation, imagine that a prior will left everything to the children, but a later will left everything to the "friend". By winning the contest, under certain circumstances, the prior will would be the valid will and the children would inherit under that will. The grounds for contesting a will are as follows: That the decedent was induced to create a will through false and fraudulent representations. That the decedent did not have the mental capacity to make a will. That the will was executed or created as a result of undue influence, fraud, duress or mistake. That the will was not properly witnessed as required by California law. Once a petition is filed contesting the will, the matter gets set for a trial and the evidence is heard. However, it should be noted that it is very difficult for a person challenging a will to win a will contest. The reason is that the courts are not in favor of will contests and highly favor the right of a person creating a will to dispose of his or her property as a very strong right which should not generally be interfered with.

Copyright © 2002
by Nancy Pack-Rayman and Michael Norman Saleman
All rights reserved.