Matthew D. Kanin
Of Counsel, Greenspoon Marder LLP
When advising a client who seeks to offer a will for probate, or to contest a will that has been offered, an attorney should know what procedural vehicles and substantive grounds are available for contesting the will. Judicial bench officers handling will contest cases also must be knowledgeable in this area of the law. This article and accompanying self-study quiz will educate readers regarding when and how will contests are initiated; who has standing to contest a will; responses to will contests and grounds to contest wills; the burden of proof; the impact of a no contest clause; and appeals.
Introduction
A will is a document that a competent adult uses to direct the disposition of their real and personal property upon their death. (Probate Code, §§ 6100, 6101, 6100.5, 7000; all statutory references are to this Code unless otherwise specified.) The will also nominates the person or persons who the adult wants to act as the personal representative of the estate. (§ 8420.)
When May a Will Contest be Initiated?
Property disposed of by a will is subject to probate administration. (§ 7000 [estate assets must be administered according to the Code]; see In re Loring’s Estate, 29 Cal.2d 423 (1946) [explaining the continuing process of administration]; In re Percival’s Estate, 138 Cal.App.2d 494 (1956) [will that has not been admitted to probate is not evidence of title].) Probate proceedings may be commenced any time after the testator’s death, but not prior thereto. (§ 8000.) Under section 8000, administration is initiated with a petition to appoint a personal representative, and if applicable, probate the decedent’s will. But, section 8000 uses permissive language: “may”; probate is not mandatory for all decedents, for instance, decedents whose estate is fully disposed of by nonprobate transfers under Division 5 (commencing with § 5000) or living trust under Division 9 (commencing with § 15000), subjects beyond the scope of this article.
When a decedent leaves what appears to be a will, California law imposes certain requirements on the possessor of the original, as well as a procedure for compelling production, lodging with the Superior Court for safekeeping, and transfers between counties. (§§ 8200–8203.) The original will may be lodged simultaneously with the petition. (§ 8200(a).) The absence of the original does not necessarily preclude a will from being admitted. (§ 8000.)
The earliest a will can be contested is after it is offered for admission to probate. (§ 8250, cross-referencing § 8004.) A contest initiated after the introduction of the will, but prior to its admission, is governed by Article 3 of Chapter 3 of Part 2 of Division 7 (commencing with § 8250), and is known as a “pre-probate contest.” A contest may also sometimes be commenced after the will is admitted to probate, with a “Petition to Revoke Probate,” which is governed by Article 4 of the same Chapter (commencing with § 8270). A post-probate petition must be filed within 120 days of the admission of the will to probate. (§ 8270(a).) This time may be extended if the contestant is a minor or “incompetent” without a guardian or conservator. (§ 8270(b).)
How is a Will Contest Initiated?
A contestant must file a pleading seeking either to contest pursuant to section 8250 (pre-probate) or a petition to revoke probate pursuant to section 8270 (post-probate). In either case, the contestant must issue and serve a summons. (§§ 8250 [pre-probate], 8271 [post-probate].) The respective statutes specify to whom the summons must be directed and served. While the wording slightly differs between the two, the categories often overlap. In a post-probate contest under Article 4, the summons must be directed to the personal representative, the decedent’s intestate heirs, and any beneficiaries named in the admitted will. (§ 8271.) In a pre-probate contest under Article 3, the summons must be directed to all persons who were entitled to notice of the underlying Petition for Probate (as specified in Chapter 2 commencing with § 8110), which constitutes all known or readily ascertainable heirs, as well as all persons named in the will as beneficiaries or as officeholders. (§ 8110.) Whether under Article 3 or Article 4, the contest pleading must set forth the grounds for the contest or revocation. (§§ 8250(a), 8270(a).)
Who has Standing to Contest a Will?
Only an “interested person” may initiate a post-probate contest. (§ 8270.) The term “interested person” has a statutory definition, but one which is indeterminate: “the meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.” (§ 48(b).) Subject to that caveat, an “interested person” is generally “an heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” (§ 48(a)(1).) An “heir” means the person or persons who would take the property of the decedent under the law of intestate succession. (§ 44.)
While this language appears to create a broad class of potential contestants, only individuals with a pecuniary interest in the proceedings may contest a will. (Estate of Weber, 229 Cal.App.3d 22 (1991).) Whether a party has such an interest is subject to the discretionary determination of the trial court, on a case-by-case basis. (Colvis v. Binswanger, 96 Cal.App.5th 393 (2023).) A party who took part in a pre-probate contest, or who was served with notice thereof, and failed to respond, may neither commence nor join a post-probate contest. (§ 8270.)
Once a Contest is Commenced, What Responses are Permitted or Required?
Under either Article 3 or Article 4, the recipient has 30 days to file a written pleading in response. (§§ 8250(a), 8271.) Section 8271 provides that “Failure of a person timely to respond . . . precludes the person from further participation in the revocation proceeding, but does not otherwise affect the person’s interest in the estate.” Unlike section 8271, nothing in Article 3 specifies the exact consequences of failure to timely respond; however, section 8250(a) implies similar consequences, providing that “the summons shall contain a direction that the persons summoned file . . . written pleading in response . . . within 30 days after service of the summons.” Section 8251 also expressly authorizes an interested person to respond to the pre-probate contest by way of demurrer; Article 4 neither specifically authorizes, nor precludes, a demurrer, however, it is safe to assume that they are equally available. (See § 1000 [procedural rules of civil actions apply to probate proceedings except where otherwise specified].)
A proposed personal representative who has not yet been appointed is not required to respond to a pre-probate contest. (§ 8250(b).) Under this section, once a personal representative has been appointed pursuant to a will, there is a duty to defend the will against a contest.
What Grounds are Allowed to Contest a Will?
The grounds for initiating a contest at a trial are enumerated in the Code. (§ 8252(a).) Under the statute, the grounds are: (1) lack of due execution; (2) lack of testamentary intent or capacity; (3) undue influence; (4) fraud; (5) duress; (6) mistake; and (7) revocation. (See also §§ 6100.5 [capacity]; 6110–6111 [execution requirements]; 6104 [ineffectiveness of document procured through fraud, duress, menace, or undue influence].) “The court shall try and determine any contested issue of fact that affects the validity of the will.” (§ 8252(b).) If the alleged grounds do not affect the validity of the entire will, part may be rejected as void, and the remainder sustained, if severable. (Estate of Webster, 43 Cal.App.2d 6 (1941).)
A will may be contested for lack of due execution if it was not executed in conformity with at least one of the methods set forth in California’s Wills Act, Part 1 of Division 6 (commencing with § 6100). Generally, a formal will must be in a writing signed by (or at the direction and in the presence of) the testator, and subscribed by two witnesses. (§ 6110(b) & (c).)
A will that does not comply with section 6110 is admissible as a “holographic will,” if the signature and the material provisions are in the handwriting of the testator. (§ 6111(a), (c).) A holographic will should also be dated, to avoid doubt as to whether its provisions are controlling. (§ 6111(b)(1).)
In some instances, a will that does not fully comply with the requirements of a formal or holographic will may still be admitted, but only on showing of clear and convincing evidence of testamentary intent. (§ 6110(c)(2); see Estate of Stoker, 193 Cal.App.4th 236 (2011).) This provision came into effect on Jan. 1, 2009, replacing prior law requiring strict compliance. (See Estate of Saueressig, 38 Cal.4th 1045 (2006) [holding, under prior law, courts had no authority to dispense with formalities].)
A contest may allege that a will is invalid because the document was executed by an individual who lacked capacity, or intent, to make a will. (§ 8252(a).) The intent requirement means that, before a document can be admitted to probate, it must be evident that the testator intended the instrument to create a disposition of property effective upon death. (Estate of Southworth, 51 Cal.App.4th 564 (1996)) [handwriting on pre-printed “donor card” not construed as a will due to insufficient evidence of intent].)
An individual lacks testamentary capacity if the individual is not, at the time of the testamentary act, capable of simultaneously understanding (A) the nature of the testamentary act, (B) the nature and situation of the individual’s property, and (C) remembering their relationships to living descendants, spouses, parents, and other individuals whose interests would be affected. (§ 6100.5(a)(1).) Alternatively, an individual lacks capacity if the individual has a mental health condition, including suffering from delusions or hallucinations, where the delusions or hallucinations cause the testator to devise property in a way that they otherwise would not have. (§ 6100.5(a)(2); see Eyford v. Nord, 62 Cal.App.5th 112 (2021).) As noted by the Eyford case, all individuals are presumed to have capacity, unless proven otherwise.
Undue influence is “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (David v. Hermann, 129 Cal.App.4th 672 (2005).) The David case also noted, “The proof of undue influence by circumstantial evidence usually requires a showing of a number of factors which, in combination, justify the inference, but which taken individually and alone are not sufficient.” (Citation omitted.) In addition to common law undue influence, there is a statutory presumption of undue influence for certain disqualified donees (such as care custodians and interested drafters), codified in Part 3.7 of Division 11 (commencing with § 21380). This doctrine – though weighty – is not the focus of this article, because it has been extensively covered elsewhere.
“Proof that a [testator] is induced by misrepresentations into making dispositions that would not have been made absent those misrepresentations constitutes fraud.” (Ibid.) The elements of fraud as a defense to contract are defined generally in Civil Code sections 1571–1574. “The concept of fraud embraces anything that is intended to deceive,” including any statement, act, concealment, and omission involving a breach of legal or equitable duty, trust, or confidence that results in injury to one who justifiably relies on it. (Ach v. Finkelstein, 264 Cal.App.2d 667 (1968).)
The definition of “duress” and “menace” have been codified: “Duress” consists of “unlawful confinement” of a person, or a close relative of the person, or their property (Civ. Code § 1569), while “Menace” is the threat of an act that would constitute duress. (Civ Code § 1570.) In other words, either “duress” or “menace” may be alleged when the testator was not merely influenced, but coerced, into executing the instrument. (Comment on Subsection (c), Restatement (Third) of Property: Wills and Other Donative Transfers § 8.3 (2003).)
“Mistake” in the context of a will contest is construed the same as the defense of mistake in an action on a contract. (See In re Barton’s Estate, 96 Cal.App.2d 234 (1950).)
Although “revocation” is a ground of contest, a final order admitting a will to probate does not preclude a later petition to admit a different, inconsistent will. (§ 8226.) However, failing to contest a will revoked by a later will, and waiting to instead admit the later will is not without risk, because the admission of a subsequent will functions only prospectively. (§ 8226(b).) The admission of the later will does not alter prior actions even if inconsistent with the newer will.
Who Has the Burden of Proof in a Will Contest?
The assignment of the burden of proof depends on the timing and the grounds of the contest. In a pre-probate contest, “the proponents of the will have the burden of proof of due execution” while “contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” (§ 8252(a).) A post-probate contest implies that the proponents have already met their burden of proof of due execution, and therefore the burden would be with the petitioners as to any grounds of context.
When undue influence is asserted, burden-shifting presumptions may apply. A common law presumption “arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (David v. Hermann.) Under the David case, the presumption of undue influence still requires the contestant to establish the threshold elements. Once triggered, the will proponent must disprove undue influence, but the ordinary preponderance of the evidence burden applies. (Ibid.) It substantively changes what the will proponent must prove or disprove, rather than the standard by which they must disprove it. In addition to the common law presumption, there is also the statutory presumption under section 21380; this presumption does sometimes raise the burden of proof. (§§ 21380(b), 21384.)
What is the Impact of a No Contest Clause?
A testator can elect to include a “no contest clause” in a will. (Wills and Other Donative Transfers, supra, § 8.5.) California has partially codified this law governing no contest clauses (§ 21313), and its current codification applies only to instruments that became irrevocable after January 1, 2001 (§ 21315). As applied to “direct contests” (§ 21310(b)), the type of contests discussed herein, public policy requires that the no contest clause does not function as a defense or a bar to proceedings, but rather as a deterrent. (§ 21311(a)(1).) Under this statute, a contest may proceed notwithstanding the presence of the no contest clause, but if an unsuccessful contestant is found to have initiated the contest without probable cause, in addition to other liability, the contestant can be disinherited. This necessarily contemplates subsequent proceedings, and such proceedings sometimes result in a special motion to strike pursuant to Code of Civil Procedure section 425.16 (Anti-SLAPP). (See Dae v. Traver, 69 Cal.App.5th 447 (2021).)
Is the Outcome Appealable?
Section 1303 governs the appealability of orders in probate proceedings. The “grant or refusal to grant” an order admitting a will to probate, or revoking a will, is made appealable under section 1303(b). However, an order dismissing a pre-probate contest, even without leave to amend, is not appealable until there is a final order admitting the will to probate. (Estate of Weber.)
Although not an appeal to a higher court, a judgment on a will contest is subject to a Motion for New Trial. (§ 7220(a).) New trial motions for will contests are governed by the same procedures as in civil trials. (§1000; see Code Civ. Proc., § 656 et seq.)