On this page we will provide a very brief summary of California law regarding challenges to a Will or Living Trust. Our purpose is to raise some issues for your consideration both in planning your own estate and with regard to estates of persons who are deceased or their estate plan is being questioned.

The discussion will refer primarily to Wills.  The principles, however, apply to both Wills and Trusts.

Generally--any "interested person" may contest

Whether raised before or after the will is admitted to probate, a contest may be pursued by "any interested person." The Probate Code defines "interested person" broadly to include a decedent's spouse, children, heirs, testate beneficiaries, creditors, and "any other person having a property right in or claim against" a trust or estate which may be affected by the proceeding. It also includes any other person with a statutory right to letters, as well as fiduciaries representing any such person.

Under case law, the general rule is that the contestant must have an interest of a pecuniary nature which may be impaired or defeated by probate of the will or benefited by setting it aside (such as an heir or legatee under a prior will. Any person who would succeed to any portion of the estate if decedent had died intestate has standing to contest a testamentary document which would defeat or impair that intestate interest.

The beneficiaries under an earlier will, whose interests are impaired or defeated by a later will offered for probate, have standing to contest the later will.

Pretermitted Heirs

Decedent's spouse and children, although omitted from the will, may have claims to a "statutory share" of the estate as "pretermitted heirs" under Ca Probate Secs. 6560-6573. Even so, they do not have standing to file a will contest solely in their capacities as pretermitted heirs since they take their "statutory shares" by operation of law, irrespective of the will, and thus cannot obtain any "benefit" from denial of the will to probate.

If decedent married after executing a will and the will fails to provide for the surviving spouse, the will is revoked to the extent of the surviving ("omitted") spouse's "statutory share"--namely, decedent's one-half interest in community and quasi-community property and the share of decedent's separate property that the spouse would have received if decedent had died intestate, but not to exceed one half of decedent's separate property.

A child born to or adopted by a testator after execution of his or her will has statutory share rights equivalent to that child's intestate share. But exceptions defeating pretermission apply; the exceptions are analogous to those defeating a spouse's statutory share rights, above (i.e., intentional omission).

Omitted children living when the will was executed also have statutory share rights if it is shown that the testator failed to provide for the child under a mistaken belief that the child was dead or that testator was unaware of the child's birth. (In this case, there are no "exceptions" to defeat the child's intestate share.)

A child born out of wedlock after execution of the testator's will has the same statutory share rights as a child born during marriage: Generally, ". . . the relationship of parent and child exists between a person and the person's natural parents, regardless of the marital status of the natural parents."

Establishing paternity after the alleged father's death is subject to stringent standards designed to discourage dubious claims made for the sole purpose of inheritance.

Thus, where a child is born outside the marital relationship and a court order declaring paternity was not entered during the father's lifetime, paternity may be established only by (i) clear and convincing evidence that the father openly held the child out as his own; or (ii) proof that it was "impossible" for the father to hold the child out as his own (e.g., when the father dies before birth) and otherwise establishing paternity by clear and convincing evidence.

Evaluating Whether to Contest

When evaluating the chances of success, consider the apparent judicial attitude toward will contests. Generally, will contests are disfavored. This attitude is evidenced by rigid evidentiary requirements, the relatively low percentage of contests that prevail, and the 1988 Code revisions eliminating the right to a jury trial. Courts are much more inclined to uphold an offered will, so as to give effect to decedent's right to dispose of property as he or she chooses. Therefore, "long-shot" contests should be avoided; the odds are that they will not succeed!

An unsuccessful will contestant is vulnerable to being sued for malicious prosecution. Indeed, a malicious prosecution action may be maintained for bringing a will contest on multiple grounds, even though only some, but not all, of those grounds were asserted with malice and without probable cause.

Another factor that may play a crucial role in the decision to file a will contest is the existence of a "no-contest"(or "in terrorem") clause in decedent's will or other donative instrument (e.g., a trust)--i.e., a provision that purports to penalize (or even disinherit) beneficiaries who attempt to challenge the will

Essentially then, a no-contest clause is in the nature of a disinheritance device, triggered by the filing of a will contest (and often by other forms of challenge to the will or estate plan). Such a clause typically provides that if a beneficiary contests or seeks to impair or invalidate decedent's will or any of its provisions, the contestant will be disinherited and thus may not take the devise otherwise provided under the will. (Alternatively, the clause may provide for a forfeiture effectively amounting to a disinheritance: e.g., if beneficiary contests will, he or she shall take only $1, in lieu of any other devise.)

Though most common in wills, no-contest provisions are often included in trust instruments as well. But the purpose is the same in either context--i.e., to discourage contests to the will or declaration of trust by imposing a "penalty" or "forfeiture" against beneficiaries who might be tempted to challenge the dispositive instrument.

Provisions in a will that expressly "disinherit" an heir are to be distinguished from "no-contest" clauses. A testator's attempt to expressly disinherit "all my heirs" or "every person not mentioned in my will" may be too general to rule out a spouse's or child's pretermission rights. In this case, an omitted spouse or child may seek the statutory share of a pretermitted heir without violating a no-contest clause in the will: As discussed earlier, pretermitted heirs ordinarily do not and cannot "contest" the will; rather, they take a statutory share by operation of law despite the will's provisions.

Obviously, if a contestant's claim would cause him or her to be disinherited under the will's no-contest clause, it may not make sense to pursue the challenge. The decision will have to depend on what the contestant stands to gain versus what he or she stands to lose or forfeit if the contest is unsuccessful; and then, the odds on whether he or she will prevail in the litigation! Of course, if the contest succeeds, the no-contest clause will fall along with the challenged document.

As a general rule, the Probate Code continues preexisting case law upholding the validity and effect of no-contest clauses in accordance with the testator's intent

Grounds for Contest

A statutory "will contest" attacks decedent's will on one or more specified grounds, any one of which, if established, invalidates the will. Specifically, the potential statutory issues are (a) due execution, (b) testamentary intent, (c) testamentary capacity, (d) undue influence, fraud or duress, (e) mistake, and (f) revocation. See Ca Probate Sec. 8252(a).

	Lack of due execution: A will is invalid if lacking proper formalities--i.e., in regard to a formal witnessed will, if lacking due execution and attestation; or, in regard to a holographic will, if the "material provisions" are not in decedent's handwriting or the instrument is not signed by decedent
	Before a will may be admitted to probate, it must appear from its terms, viewed in light of the surrounding circumstances, that it was executed with testamentary intent. The basic test of testamentary intent is whether the testator intended by the particular instrument to create a disposition of property effective only upon death; no "magic" words are necessary.
	A will may be invalidated if executed by a testator lacking "testamentary capacity." Generally, any adult (at least 18 years of age) of "sound mind" has "capacity" (i.e., is "competent") to make a will. The testator's mental competency is ordinarily presumed. The contestant, therefore, has the burden of proving by a preponderance of the evidence that testator was not mentally competent when the will was executed. There are two alternative "tests" for testamentary incapacity: A person lacks testamentary capacity if, at the time the will was executed, he or she did not have sufficient mental capacity to: 1) Understand the nature of the testamentary act (i.e., that by executing the will, he or she was effectively disposing of property at death); 2) Understand and recollect the nature and situation of his or her property; or 3) Remember and understand his or her relationship to living descendants, spouse, and parents, and those whose interests are affected by the will (often referred to as "the natural objects of one's bounty"). Alternatively, testamentary incapacity may be shown by evidence that, at the time the will was executed, testator suffered from a mental disorder with symptoms including delusions or hallucinations, which resulted in devising his or her property in a way which, except for the delusions or hallucinations, he or she would not have done.

Again, the testator's competence is judged as of the point in time when the will was executed. Evidence of his or her general mental condition, or of delusions or hallucinations, at other points in time are not determinative; at best, this is only circumstantial evidence of competence or incompetence at the time of execution.

• A contest may be predicated on proof that the will was executed under "undue influence, fraud or duress". As discussed below, these grounds are closely related and may exist simultaneously.
  
  Although the will itself is valid, decedent's testamentary transfer to a subscribing "interested witness" may be affected: Unless the will is signed by at least two other disinterested witnesses, there is a rebuttable presumption affecting the burden of proof that the "interested witness" procured his or her devise by duress, menace, fraud or undue influence . . . except that this presumption does not apply to witnesses given a devise "solely in a fiduciary capacity"

Likewise, where a beneficiary who is in a confidential relationship with the testator actively participates in procuring execution of the will and unduly profits under the will (i.e., by an "unnatural" disposition), a presumption of undue influence arises. The burden then shifts to the beneficiary to show that the will was freely made, without exertion of undue pressure. The confidential relationship for this purpose need not be a family one (e.g., husband and wife). The relationship can be with anyone whom the testator confided in . . . for example, a business advisor; an artistic manager or agent; the estate planning attorney or other lawyer; a secretary; or even a psychic!

Existence of the confidential relationship does not alone invoke the presumption. In addition, the contestant must show that the "confidant" both (a) exerted influence or pressure over the testator and (b) gained something through the will that he or she ordinarily would not have received (e.g., because not a "natural object of testator's bounty").

• "Fraud" which is sufficient for the basis of a will contest refers to the use of misrepresentations to induce the execution of a will or a particular devise; it is often coupled with "undue influence" on the theory that misrepresentation formed part of the overall exertion of undue influence.
  
  Whether the alleged misrepresentation actually induced the making of the will or the particular devise is a question of fact. For instance, evidence of false charges against a close relative of the testator, which caused the testator to disinherit the relative, establishes ground to invalidate the will for reasons of "fraud."
  
  Also, a will may be invalidated upon proof that the testator was misled by trick or deception into signing the instrument, believing it to be something other than a will.
  
  "Undue influence" may be proved by showing: (a) the existence of a confidential relationship between the testator and the individual alleged to have unduly influenced the testator; (b) a propensity on the testator's part--whether by reason of old age, mental infirmity or otherwise--to have his or her free will usurped by the individual exercising undue influence; and (c) the execution of a will "unduly benefiting" the person alleged to have influenced the testator.
  
  Evidence of some "pressure" imposed on the testator is not enough; rather, there must be proof that the testator's "free will" was completely overborne by the pressure of influence, causing him or her to make a disposition not in accordance with his or her true desires. [See > Estate of Mann, supra, and cases cited therein.
  
  As stated, a beneficiary who stood in a "confidential relationship" with the testator and actively participated in the will's execution, "unduly profiting" thereby, must overcome a presumption of undue influence. In any event, the case normally must be established circumstantially, through inferences. But proof of circumstances consistent with undue influence is not itself sufficient--the proof must be of circumstances inconsistent with the testator's voluntary action.
  
  Usually, evidence of cumulative events must be introduced, which together support a finding of undue influence but which, if taken alone, might not be enough.
  
  Possible items of circumstantial evidence include:
  
  1) "Unnatural" testamentary provisions;
  
  2) Testamentary dispositions which are apparently at odds with the testator's stated intentions and desires during life (before or after execution of will or as reflected in earlier testamentary documents);
  
  3) Close relationship with a beneficiary, which presented opportunity for the exercise of undue influence;
  
  4) Participation by a major beneficiary in procuring execution of the will.
  
  It may be probative that a person had the opportunity to influence the testator's motives and desires (e.g., as friend, family, attorney, etc.). But opportunity alone does not create an inference that the opportunity was exercised. The contestant must also show specific occasions, events and conduct demonstrating the actual influence exerted.
  
  Neither urging the testator to make a will nor procuring an attorney to prepare the will are themselves sufficient to bring the presumption of undue influence into play. Nor does a beneficiary necessarily practice undue influence by accompanying decedent to the attorney's office. To sustain an undue influence finding under these circumstances, there must be additional evidence of deception or overreaching--e.g., as where the beneficiary also urged the testator to make a particular disposition or otherwise sought to determine the contents of the will.
• A will may also be invalidated upon proof of "mistake." In the probate setting, "mistake" encompasses an erroneous assumption of facts upon which the testator relied in formulating his or her estate plan, errors in drafting the will, or an erroneous belief about the instrument being executed.
  
  A will may be denied probate where decedent relied on a mistaken set of facts in drafting the instrument (and formulating the devises therein), the mistake appears on the face of the will, and the disposition that would have been made "but for" the mistake may be inferred from the will.
  
  Only a mistake that impacts the testator's estate plan considered as a whole justifies invalidating the will--mistake as to one minor devise is not enough. Conversely, even a mistake of the greatest magnitude would probably be insufficient to deny probate of a will where the resulting distributions (e.g., through intestate succession) would clearly frustrate the testator's expressed intent.

Finally, a will may be denied probate upon proof it was revoked by the testator. If the will was last seen in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original can be found after the death, there is a statutory presumption that it was destroyed by the testator with the intent to revoke it.