In California, will and probate seem almost synonymous – therefore some may think that the process and procedures for both will be the same.
But while probate is arguably and technically a straightforward process of estate administration involving the filing of forms, paperwork, and records, a will contest is a completely different animal. It is adversarial litigation, governed by strict procedural rules, evidentiary burdens, and rigorous deadlines.
Technically, a will contest is brought within the context of a formal probate. In California, probate is considered a special proceeding, which is a court-supervised process of administering an estate. But once a will contest is brought, the process becomes adversarial, and the civil rules applicable to litigation begins to come into play.
Adversarial litigation is, traditionally, the reason people have lawyers.
Can You Challenge a Will Without a Probate Attorney?
As with most things in the court process, you can certainly choose to represent yourself, sometimes also known as pro per, or self-representation. But as with most things, courts will advise you of the risks of doing so, and of the prudence of having an attorney to represent you.
Sometimes people will opt to represent themselves primarily due to cost. They may not want to spend precious funds on an attorney when there is nothing preventing them from doing it themselves.
But consider the inherent costs of will contests – including funds for document analysis, discovery, even expert testimony. If you attempt to navigate all these on your own, without professional guidance, and fail to make your case, perhaps the additional fees for the services of a legal professional may actually save you money in the long run.
Navigating the Procedural Maze of Will Contests
One of the best reasons why you should seek the assistance of a probate attorney when challenging a will is that once you litigate, you have very strict rules of procedure you are expected to follow. Some of these rules are discussed below:
Legal Standing
Before you even get to the merits of your dispute, the court will first take a look at whether or not you have legal standing to bring the will contest.
Standing in a will contest is governed by Probate Code §48. This means that in order to be recognized as a person with a legal right to bring the action, you must be an “interested person.” You must either be one of the following:
- A person having a property right or claim against the estate whose interest may be affected by the proceeding
- A person with a claim towards being appointed as a personal representative
- A fiduciary representing an interested person
If you are a distant relative with no claim at all to the estate, or perhaps a neighbor or a friend of the decedent who believes that there is something wrong with the will, unless you fall under the three categories of interested persons, you don’t have legal standing.
Being a relative does not automatically confer standing upon you. Neither does a vague interest in protecting the intentions of the decedent. Maybe you are a beneficiary or successor with a claim in the estate – but your interest won’t be affected by the proceeding at all. Maybe your entire claim comes from a Living Trust that will proceed outside of probate. You won’t have any standing either.
This is one reason why it would be good to consult with a probate attorney first. Some file a will contest immediately, without sufficient research into whether they can and should. If you don’t have proper legal standing, your action will be dismissed immediately, often without having the chance to present any arguments at all.
Service of Summons
As with any adversarial contest, the rules of fair play apply. In the courts, one of these rules is the service of summons. You have to give sufficient notice to everyone whose interests may be affected by your action. This includes the personal representative, heirs, beneficiaries and other interested parties.
Proper service is crucial, and failure to comply with its requirements can invalidate the proceeding. There are strict deadlines for notice requirements, and any missed parties, or defective or missing notice requirements can render your efforts at serving summons ineffectual. A court will generally not excuse any errors here, not even for pro per litigants.
Statute of Limitations
You also don’t have a lot of time to bring a will contest. Under Probate Code § 8270, an interested person only has 120 days to bring a will contest, reckoned from the date that a will is admitted to probate.
This means that you have an average of four months to make a decision on whether or not you want to bring a will contest, collect and marshal your evidence, and determine a legal strategy.
If you fail to bring a will contest within this statutory timeline, your action will generally considered to be barred.
Assembling your Burden of Proof
One thing that should decide you on whether or not you should proceed with filing a will contest is whether or not you have sufficient evidence to satisfy the burden of proof. Moreover, your evidence must be admissible.
If you claim, for instance, that the decedent lacked testamentary capacity when he executed a will, what proof do you have to justify this? Did you witness undue influence being exercised upon the decedent? Does your evidence fall under what is legally considered “undue influence”? Do you have any medical evidence and expert witness to prove that the decedent lacked testamentary capacity at the time?
Each ground for contesting a will carries its own list of legal elements that need to be satisfied, and all of them need to meet the requisite burden of proof sufficient to invalidate a will.
Conclusion
You may take a stand that a will admitted to probate is invalid. But once you take your arguments to court, you are entering an arena with specific rules of procedure to ensure fair play and a just conclusion. And yes, it can get quite complex.
One of your best plays would be to have a good probate attorney to serve as your advocate. This is especially true if you are protecting your interests and inheritance rights in valuable properties or assets left by the decedent. Will contests can sometimes be deemed high-stakes litigation.
If you are considering disputing a will, we highly recommend that you reach out and schedule a consultation with us today. We provide candid, practical assessments so you can make an informed decision before taking action.