One trope often used in fiction is that of the spurious will. Some claim the will is the valid intention of the decedent, others claim it is not. The drama can revolve substantially around this issue alone – especially when there are heirs with strong personalities and a significant estate is at stake.
Sometimes truth can be stranger than fiction; sometimes fiction takes a lot of liberties. Either way, there may be good grounds to contest the validity of a will, and heirs and other interested persons would need to know their rights and remedies when doing so.
When a Will is Admitted to Probate
The probate process usually follows a set procedure: a petition for probate is filed, in which the petitioner asks the court to admit the will, if a will exists. If, on its face, the will appears to have been validly executed, the court will admit the will to probate.
But how do you “prove” the validity of a will?
The court will, of course, take into consideration general considerations to a valid will:
- That the decedent had testamentary capacity, or was at least 18 years old and of sound mind at the time of execution of the will;
- That there is a clear intention of the decedent to transfer property upon their death; and
- That the court is satisfied that the will was not the product of undue influence, fraud, or mistake
If these substantive legal requirements are met, the court proceeds to determine the validity of a will through the following:
Proof of Execution
Most formal wills require witnesses. That is, the will document must be signed in the presence of at least two witnesses, and each witness must also sign the will in the presence of the testator.
In order to validate this type of will, the court will usually require an Affidavit from at least one subscribing witness.
Self-proving Wills
While you don’t need to notarize a will for it to be valid, some do have it notarized. If the will includes an attestation clause from the witnesses, under penalty of perjury, then it is referred to as a self-proving will.
This attestation from the witnesses is, practically, equivalent to the affidavit required by a will that is not notarized. If a will is self-proving, the court may validate it without requiring any further evidence.
Holographic Wills
Holographic wills are unique in that they are handwritten by the testator, and there are no witnesses.
For a holographic will to be admitted, it must be sufficiently proven as legitimate through evidence – including verifiable proof that the handwriting and the signature are the testator’s.
Foreign Language Wills
If a will was written in a foreign language, a certified written translation must also be provided. Both the foreign language will and the certified written translation must be filed with the court.
The 120-Day Rule
Admitting the will to probate might seem as though the court is accepting the will as genuine. But this is not yet final. It must be remembered that in order for a will to be admitted, the petitioner only needs to establish its due execution – or that the legal formalities for its signing were present. Capacity of the testator is generally presumed.
But both capacity and due execution are rebuttable.
California Probate Code 8270 specifically allows a window of 120 days from the date the will is admitted to probate for the will to be contested. So the answer to the question of can you contest a will after probate is yes – for a limited time.
But now comes the question of standing. That is, who can contest the will after probate?
Standing to Contest a Will after Probate and Protection for the Vulnerable
Probate Code 8270 recognizes two distinct classes of possible petitioners who may bring a petition to revoke the probate of a will:
- Any interested person who:
- Is not a party to a will contest; and
- Did not have actual notice of a will contest in time to have joined the contest
- A person who was a minor or who was incompetent and who had no guardian or conservator at the time the will was admitted to probate
Under this section, an interested person who did not receive any notice of a pre-probate will contest in time to have joined it can still bring a will contest after the will is admitted to probate. This class of petitioner has 120 days to do so.
On the other hand, an interested person who lacked capacity at the time the will was admitted to probate, and they did not have any guardian or conservator at the time, could not have possibly brought a will contest even if they wanted to. For this class of petitioner, they are not restricted to 120 days after probate. They may actually petition to revoke the probate of the will at any time before the entry of an order for final distribution.
So now the answer to the question of whether you can contest a will after probate changes in scope. Yes, you can contest the will for 120 days after the will is admitted to probate if you are the first type of petitioner. If you are the second type of petitioner, you can seek to revoke probate any time before the entry of an order for final distribution is and becomes final.
Why this Matters
As in most things in legal processes and proceedings, there needs to be a balance between competing interests. In this case, giving exception to people who could have acted before probate if they were able to, had they not lacked notice or capacity.
But at the same time, we also want some finality to legal proceedings. Unless the petitioner was a minor or lacked capacity at the time, all will contests that are brought after the 120 days limit is barred. The will has been admitted so it would be in the best interests of all if this determination becomes final, and probate can proceed as intended.
The alternative is that probate will never be final because people may keep questioning the validity of the will even after the estate has already been distributed. There needs to be finality to probate and the closing and distribution of an estate. The law generally doesn’t reward those who sit on their hands when they had clear notice and a clear opportunity to act in a timely manner.
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If you are considering contesting a will that has already been admitted to probate, or are currently defending a will that is being contested, early consultation with a probate attorney will help you understand your rights, evaluate your options, and ensure compliance with critical deadlines.