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How to Contest a Will and Win: Full Guide

It can be shocking and even infuriating to be cut out of someone’s will. You might have assumed you would inherit under the will, or the testator might have actually told you that you would be included. So what are your chances of contesting a will and winning? That depends on the specific facts of your case.

In most cases, the contestant’s chances of successfully contesting a will are low. Your case may be different, however. In most cases, you must prove some form of coercion, diminished mental capacity, or fraud to prevail. This is an uphill battle, yes, but it can be waged and won in some circumstances. Professionals at Barr & Douds will help you!

Who Can Contest a Will?

Only someone with a stake in the outcome of a will contest can challenge a will. This generally means people from two classes:

  • Heirs are generally family members who most people would expect to inherit under the will. That might mean children, spouses, brothers, sisters, grandchildren, or other members of the testator’s family.
  • Beneficiaries who were named in the last will: If the testator named beneficiaries in a previous will, these former beneficiaries may contest the current will.  

Common Grounds for Contesting a Will

The right to contest a will takes more than mere dissatisfaction with its contents. You need formal legal grounds, and these grounds are limited in number. The   most common grounds for contesting a will include the following:

  • The testator was mentally incompetent. If you are successful, this will invalidate the will.
  • The will fails to comply with the requirements of California law. In California, a will must be in writing, signed by a qualified person (typically the testator), and witnessed by two people. (An exception to this is a “Holographic Will.”)  
  • The purported will does not clearly establish that the testator intended to draft a will.
  • Forgery or fraud: This can be difficult to prove because the testator is dead. One way to prove forgery, however, is to prove that the signature is not authentic.
  • Undue influence. A will is not valid if the testator was menaced, coerced, or unduly influenced into signing it. It should be noted that undue influence is notoriously difficult to prove, particularly if the testator doesn’t lack capacity.
  • Mistake. You may have a case if the testator cut you out of the will by mistake.   However, the types of mistakes that would cause a will to be invalidated are limited.   Asserting a mistake does not necessarily raise the issue of mental incapacity.

Remember that there is a difference between invalidating a will in favor of another previous will and invalidating a will with no other will to resort to. According to the California law of intestate succession, if the court invalidates the will with no other will to take its place, the testator’s assets will be distributed to his or her heirs. Beware – you may end up worse off under this law than you would have been if the will had never been invalidated.

How to Win a Will Contest

how to win a will contest

How do you contest a will? First, you must honestly reflect on whether the testator had a good reason to disinherit you. Did you have a good relationship with the testator, or were you estranged? How often did you visit, write, or call? Second, consider the testator’s mental capacity when the will was signed. What evidence do you have that the testator lacked capacity? If the answers to these questions establish solid grounds for challenging a will, you should take the following steps to bring your complaint to court.

Find a Good Lawyer

In California, you can file a will contest by yourself, without a lawyer. This is generally a bad idea, however, because will contents are complex. Even licensed attorneys specializing in another area of law have trouble handling will contests. Seek out the services of an experienced trusts and estates law firm.

Estimate the Value of Your Inheritance

Contesting a will is very expensive. If the amount you stand to inherit isn’t worth the likely costs, your claim is probably not worth pursuing.  

Obtain a Copy of the Will

If you are an heir and don’t already have a copy of the will, you will probably receive a copy with the initial probate filings. Your attorney can also ask the nominated executor of the probate estate for a copy of the will, or obtain it from the court. He or she will also want copies of any previous wills.  

File a Will Contest

Your attorney will typically draft and file the will contest shortly after the nominated executor files a petition for probate. The contest states the grounds for invalidating the will, but typically does not contain all, or even most, of the evidence supporting your claims. The evidence is usually obtained through the discovery process – depositions, subpoenas, written discovery, etc. – to be presented at trial.

Consider Mediation  

what are the chances of contesting a will and winning

Will contests are exhausting and expensive. It doesn’t matter how just and worthy your case is if the contest leaves you worse off than you were when you started. Fighting one could deplete not only your finances but also the estate’s assets. The court will typically require the parties to go to mediation, where you should make every reasonable effort to settle the case.

What Are the Chances of Contesting a Will and Winning?

Of course, every case is unique. However, a person contesting a will has the burden of proving its invalidity, the capacity required to execute a will is low, and evidence of undue influence is hard to come by. So the odds are, in these respects, stacked against the contestant. it may seem that your chances of winning a will contest at trial are small. But that doesn’t mean you cannot benefit from filing a contest. Most civil cases in California – including most will contests – settle before trial, so if you have solid grounds to contest the will you may benefit (or “win”) from a favorable settlement.

Contact a lawyer to determine the strength of your claim. Speak with a successful, reputable trusts and estates attorney who will give you a no-nonsense assessment of the strengths and weaknesses of your claim.

What Happens If I Contest a Will and Lose?

If you take a will contest to trial and lose, you will probably end up behind. In a best-case scenario, you simply sacrifice all the time and money you spent contesting the will. In a worst-case scenario, the will contains a non-contest clause that could result in you losing any inheritance you would have otherwise received under the will.  

Contact Us to Get Help With Your Will Contest

The trust and estate lawyers at Barr & Douds have helped hundreds of clients successfully litigate and mediate their claims. Contact us online or call us at (925) 660-7544 so that we can discuss your case and answer your questions. We look forward to hearing from you!


Loren Barr
by Loren Barr
Updated: June 1, 2022

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