There is an old saying in the law that goes “first in time, first in right.”  For Wills, the opposite is true—last in time, last in right.  Typically the last valid Will wins.  But what if the last Will is not valid?  That could allow an earlier Will to apply instead.  And it is this dispute—last Will versus second-to-last Will—that is at the heart of nearly every Will contest lawsuit.

Of course, a Will cannot be overturned just because the heirs or beneficiaries don’t like the Will terms.  There has to be some legal basis to invalidate the Will (see our earlier blog post on invalidating a Will).  Once a legal basis is determined, it’s time to get down to business; actually filing the Will contest.

A Will contest lawsuit is unique in that it requires a few steps, and a few different filings, before the lawsuit is properly “before the Court” (which just means all the correct paperwork is filed so the Court can handle the matter).  Let’s walk through the steps for a properly filed Will contest lawsuit:

Step 1 – Petition for Probate: You have to open a probate estate.  In California, a Will is not is not a Will until it is admitted to probate.  The procedure of admitting a Will to probate is the Court’s method for proving that the Will is valid.  Before being admitted to probate, a Will is simply evidence of a potentially valid Will.  Once admitted to probate, a Will is, by law, a valid Will.

So whether you are trying to admit the last Will or an earlier Will, you must ask the Court to admit the Will to probate and that requires a Petition for Letters Testamentary (also referred to as a Petition for Probate).  Under the Petition for Probate, you recite the facts as they pertain to the Will you want admitted and then you must sign the Petition and file it with the Court. 

What if the opposing party has already filed their own Petition for Probate?  No problem, you file your own Petition for Probate as well (they are referred to as “competing petitions,” but you use the same form whether you’re filing first or second).  It makes no difference who files first, as long as you file before the opposing Will is admitted to probate.

Step 2—The Objection.  The next step is a separate filing called an objection to probate of Will as prescribed by Probate Code Section 8250. This is the actual Will contest filing where you explain why the other person’s Will is invalid and what legal basis (or bases) you are using to dislodge that Will.  A Will contest objection under Section 8250 is unique under the Probate Code in that it is the only probate filing that requires the issuance of a summons (like the ones used for civil complaints).  Both the objection and the summons must be personally served on everyone (and I mean everyone) mentioned in the Will you are trying to invalidate, along with all of the decedent’s heirs (if they are not otherwise mentioned in the contested Will). 

Step 3—Prove your case.  At trial, the proponent of the contested Will must first prove due execution of the Will (which means that it was properly executed as set forth under Section 6110).  Once execution is established, it is then the contestant’s burden to prove any of the legal grounds to invalidate the Will, including lack of capacity, undue influence, fraud, duress, or revocation.  Never forget what your burden is at trial because it will guide your actions in conducting discovery beforehand.

After taking the right steps, your Will contest is on its way through the Court system.  Now the work really begins….

  • Azita Cummings

    it is great to know there are still law firms who actually know the law and priactice it. The only question I have is a will valid is misleading e.g – you states the husband and wife are separated, when the truth is they are still married, validated by the state.