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Wills may be challenged during probate

As some California residents may know, there are times when a will is challenged. The petitioner’s reason for doing this is filed in probate court and served on a personal representative or other individuals who may answer the objection to the will within a predefined time limit. The contestant is then able to answer the response in probate court. Understanding the reasons a will is usually challenged and the likelihood of success may be beneficial prior to entering the objection in court.

Challenging a will may be difficult since the court considers a will to be the testator’s way of saying what they wish to happen to their property when they are gone. Objections to that are possible, but nearly all wills go through probate unchanged. Objections that may succeed are usually filed by a spouse who claims the testator did not have the mental capacity to write the will. Testamentary ability means an individual must understand the consequences of structuring or changing a will as well as being aware of the property they own and who the beneficiaries are. In addition, if the contestant is able to show that in some way the person who stands to inherit property held undue influence over the testator, the new will may be ruled invalid.

Usually, unless contested, a newer will is held valid over an older one. However, it is important to date the will and sign it in the presence of witnesses. If mistakes occur, the will may be considered invalid.

When a testator decides to either update an existing will or create a new one, the insight of an estate planning attorney may be beneficial. The attorney may ensure that all conditions are satisfied in order to assure the individual’s wishes will be carried out.

Source: California Law, “Probate Code Section 8250-8254”, November 01, 2014


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