What Happens When Someone Contests a Will? (w/Examples) + FAQs

When someone contests a will, they file a formal legal challenge in probate court asking a judge to rule that the will is invalid. The court then pauses the distribution of the estate, and the case enters a litigation process that includes discovery, potential mediation, and possibly a trial. If the contest succeeds, the court may reinstate a prior valid will — or, if none exists, distribute assets under the state’s intestate succession laws.

Under the Uniform Probate Code and individual state statutes, a will contest must be filed within a strict window — often as short as 90 days or as long as two years — depending on the state. Miss the deadline, and the court will not hear your case, no matter how strong your evidence may be. Roughly 3% of all wills filed in the U.S. face formal disputes, and only about 1% of those contests ultimately succeed at trial.

Here is what you will learn in this article:

• ⚖️ The exact legal grounds that allow you to contest a will — and which ones courts take most seriously
• 🕐 State-by-state filing deadlines so you never miss your window to act
• 📋 A step-by-step walkthrough of the entire court process, from petition to trial
• 💰 How much contesting a will costs, who pays, and when attorneys work on contingency
• 🛡️ How no-contest clauses work, which states enforce them, and how to navigate around them

Who Has Standing to Contest a Will?

Not everyone can walk into probate court and challenge a will. You must have legal standing, which means you hold a direct financial interest in the estate that would be affected by the outcome. Under California Probate Code § 48, for example, an “interested person” includes an heir, devisee, child, spouse, creditor, or beneficiary — anyone with a property right that could be impaired or improved if the will is set aside.

The key test is straightforward: imagine the contested will does not exist. If you would receive more without the will than you receive under it, you have standing to sue. If you would receive the same amount or less, you do not. This means a friend who was never named in any version of the will — and has no inheritance rights under intestacy law — cannot file a contest.

People who typically have standing include:

• Surviving spouses — protected in every state through elective share laws
• Children and grandchildren — especially those disinherited or omitted from a later will
• Beneficiaries named in a prior will — who received more under an earlier version
• Creditors with valid claims — who may challenge the will to recover debts
• Legal guardians or representatives — acting on behalf of minors or incapacitated persons

It is important to note that standing is not the same as having a valid legal ground. You can have standing (because you would inherit more without the will) but still lose the case because you cannot prove fraud, undue influence, or another recognized ground. Standing is merely the first threshold — it gets you through the courtroom door.

Legal Grounds for Contesting a Will

You cannot contest a will just because you think the terms are unfair. Courts require specific legal grounds, and the burden of proof falls on the person contesting the will. In most states, the standard is “clear and convincing evidence” — a higher bar than the typical “preponderance of the evidence” used in regular civil lawsuits. This means the evidence must be highly and substantially more likely to be true than untrue, as the U.S. Supreme Court defined in Colorado v. New Mexico (1984).

Lack of Testamentary Capacity

For a will to be valid, the person who created it (the testator) must have been of sound mind at the time they signed it. The testator must have understood the nature of making a will, known the extent and value of their property, recognized the natural beneficiaries of their estate (spouse, children), and understood how the will distributes their assets.

This ground is common in cases involving elderly testators with dementia, Alzheimer’s disease, or cognitive impairment from medication. Medical records are critical here, but courts have historically given more weight to eyewitness testimony from people who interacted with the testator around the time of signing. A key nuance: the capacity required for signing a will is lower than the capacity required for signing a contract. A person can have moments of lucidity and still validly execute a will during one of those clear moments.

There is generally a rebuttable presumption that the testator had capacity. This means the court starts by assuming the testator was competent, and the contestant bears the burden of presenting enough evidence to overcome that assumption. If the contestant presents credible evidence of incapacity, the burden may shift to the will’s proponent to prove the testator was competent.

Undue Influence

Undue influence is the most frequently alleged ground in will contests. It occurs when someone in a position of power coerces or manipulates the testator into changing their will in a way that benefits the influencer — and does not reflect the testator’s true wishes. It is important to understand that persuasion alone is not undue influence. A child who asks a parent to leave them more money is not exerting undue influence. The line is crossed when the influencer overpowers the testator’s free will and substitutes their own desires.

Courts look for several red flags:

• The influencer had a confidential relationship with the testator (caregiver, financial advisor, adult child living in the home)
• The influencer actively participated in preparing or executing the will (hiring the attorney, attending the signing, giving instructions)
• The influencer received a disproportionate benefit compared to what prior wills or family expectations suggest
• The testator was isolated from other family members or friends

In California, if a contestant proves all three elements — confidential relationship, active participation, and undue benefit — the burden of proof shifts to the will’s proponent. This means the person defending the will must now prove the testator acted freely. However, shifting the burden is not a guaranteed win. The proponent can overcome the presumption by showing the testator had a longstanding desire to distribute their estate in the manner reflected by the will.

Undue influence is also difficult to prove because it almost always happens behind closed doors. Contestants typically rely on circumstantial evidence — patterns of behavior, financial records, testimony from friends and family, and the testator’s medical history — rather than direct proof.

Fraud

A will obtained through deliberate deception is invalid. Fraud can take two forms: fraud in the inducement (lying to the testator to influence the will’s content) and fraud in the execution (tricking the testator into signing a document they believe is something else). For example, telling an elderly parent that their child has “abandoned them” to persuade them to disinherit that child is fraud in the inducement. Telling a testator they are signing a power of attorney when the document is actually a will is fraud in the execution.

Forgery

If there is evidence that the testator’s signature was fabricated, or that the entire document was created by someone other than the testator, the will may be challenged on forgery grounds. Forensic handwriting analysis is the primary tool used to prove forgery. Courts may also look at the paper, ink, and circumstances of the document’s creation.

Improper Execution

Every state has specific rules about how a will must be signed and witnessed. California Probate Code § 6110 requires the testator to sign the will in the presence of at least two competent adult witnesses, who must also sign the document at the same time. If even one of these formalities is missing — no witnesses, witnesses who were not present simultaneously, or a beneficiary who served as a witness — the will may be deemed invalid.

Some states have a minor exception: California Probate Code § 6110(c)(2) allows a court to admit a will that does not meet execution requirements if there is clear and convincing evidence that the testator intended the document to be their will. This is a narrow exception and should not be relied upon.

Revocation

A will can also be challenged on the ground that it was revoked before the testator’s death. Revocation happens when a testator creates a newer will that explicitly replaces the old one, or when the testator physically destroys the document with the intent to revoke it. If someone submits an older, revoked will to the court — either by mistake or intentionally — an interested party can challenge it by presenting the newer will.

How Filing Deadlines Work (State by State)

One of the most critical — and most frequently misunderstood — parts of contesting a will is the statute of limitations. Every state sets its own deadline, and missing it means you forfeit your right to challenge the will entirely. Once the deadline passes, the probate court’s decisions become final, and it is nearly impossible to reopen the case.

The clock usually starts ticking when the will is formally admitted to probate or when notice is sent to interested parties. Some states start the clock on the date of death. Below is a comparison of deadlines in key states:

A few important exceptions exist. If the person with standing is a minor or was incapacitated during the standard limitation period, some states allow tolling — pausing the clock — until the person reaches the age of majority or regains capacity. In cases involving fraud, the clock often does not start until the fraud is discovered. In California, the 120-day limit does not apply to someone who was a minor or incompetent and did not have a guardian or conservator when the will was admitted to probate.

The Will Contest Process: Step by Step

Step 1: Pre-Litigation Assessment

Before anything is filed, a probate attorney reviews the will, gathers preliminary evidence, and evaluates the strength of the case. This stage involves reviewing the deceased person’s will, trust documents, medical records, and financial records. The attorney will determine whether you have standing, whether your grounds are supportable, and whether the estate is large enough to justify the cost. Many attorneys offer a free initial consultation at this stage.

Step 2: Filing the Petition or Objection

The formal contest begins when the contestant files a petition or written objection with the probate court. In California, this means filing under Probate Code § 8250, which requires the contestant to file an objection to probate, after which a summons is issued and served on all interested parties. Those parties then have 30 days to respond. Importantly, a person named as executor in the will is under no duty to defend the contest until they are formally appointed as personal representative.

In New York, the process begins in the Surrogate’s Court of the county where the deceased lived. Before formal objections are even filed, New York allows pre-objection discovery under SCPA § 1404, where interested parties can examine the drafting attorney, the witnesses, and the nominated executor under oath. This unique step gives potential contestants a chance to gather evidence before committing to a full contest.

Step 3: Discovery

Once the case is active, both sides enter the discovery phase — the most detailed and time-intensive stage of the litigation. Discovery tools include:

• Depositions — sworn testimony from witnesses, caregivers, attorneys, and medical professionals
• Document requests — medical records, financial statements, emails, text messages, and prior drafts of the will
• Interrogatories — written questions that the opposing party must answer under oath
• Subpoenas — court orders compelling third parties (banks, doctors, nursing homes) to produce records

This phase is where cases are often won or lost. A probate attorney uses discovery to uncover emails, bank records, and medical evaluations that support the contestant’s claims — or to dismantle the opposing side’s evidence. Expert witnesses play a major role here. Medical professionals testify about the testator’s cognitive state, forensic handwriting experts analyze signatures, and psychologists may evaluate whether the testator was susceptible to undue influence.

Step 4: Motions

Either side may file motions with the court to resolve specific issues before trial. A common motion is a motion for summary judgment, where one party argues there are no genuine disputes of material fact and asks the judge to decide the case without a trial. The respondent may file a motion to dismiss, arguing the contestant lacks standing or grounds.

Step 5: Mediation and Settlement

Most probate courts encourage or require mediation before a will contest goes to trial. In mediation, a neutral third party helps the disputing sides negotiate a resolution. The mediator does not make decisions — the parties do. Mediation is confidential, flexible, and cost-effective — and it helps preserve estate assets that would otherwise be spent on attorney fees.

Settlement is far more common than trial. Roughly 90% to 97% of litigated will contests are resolved outside of court. This is a critical point: success in a will contest does not always mean winning at trial. For many families, a favorable settlement — reached through mediation or informal negotiation — achieves a satisfying outcome while saving time, money, and relationships.

Other alternatives to trial include voluntary settlement conferences, where a neutral third party (sometimes a probate judge) helps the parties reach a resolution, and Family Settlement Agreements — a legally binding contract where family members resolve the dispute among themselves.

Step 6: Trial

If settlement fails, the case goes to trial. The probate judge hears testimony, reviews documentary evidence, and evaluates the credibility of witnesses on both sides. In most states, will contests are bench trials — decided by a judge, not a jury. The judge then issues a ruling on whether the will is valid, partially valid, or invalid.

Step 7: Appeal

If either party disagrees with the ruling, they may file an appeal. The appeals court reviews the trial record to determine whether legal errors were made. Appeals can add months or even years to the process, and they do not allow new evidence to be introduced.

Three Real-World Scenarios

Scenario 1: The Disinherited Daughter and the Live-In Caregiver

Helen, a widow in her 80s, had a will leaving her estate equally to her three children — Glenn, Cathy, and Belinda. After Helen’s husband died, Glenn moved in with Helen and became her primary caregiver. Seven months before Helen passed away, she revised her will to leave everything to Glenn, cutting out Cathy and Belinda entirely.

This is the real case of Gunnells v. Harkness (S.C. Ct. App. 2020). The probate court ruled the revised will was invalid, and both the Circuit Court and the Court of Appeals affirmed the decision. The court weighed specific factors both for and against undue influence and found the evidence of Glenn’s coercive behavior sufficient to invalidate the will.

Scenario 2: The Attorney Who Became the Beneficiary

Ms. Auen was an elderly, wealthy woman in California who had always planned to leave her estate to charities. Over time, her attorney, Ms. Carson, became personally close to her and gradually inserted herself into the estate plan. In 1990, Auen signed a new will benefiting Carson and her associates, leaving the charities out completely.

In Estate of Auen (1994), the California court found all three elements of undue influence — confidential relationship, active participation, and disproportionate benefit — and invalidated the will. This case is a textbook example of why attorneys should never place themselves in a position to benefit from their client’s estate.

Scenario 3: The Handwritten Will Signed With an “X”

An elderly person’s caregiver handwrote a will and had the elderly person sign it with an “X.” The document excluded the person’s closest surviving heir. The disinherited heir challenged the will.

This real case, handled by Keystone Law, resulted in a highly favorable settlement for the disinherited heir. The attorney noted that had the will been typewritten and met execution requirements, the contest would have been far more difficult. The lesson: how a will is physically created and signed matters enormously.

How Much Does It Cost to Contest a Will?

Will contests are among the most expensive types of lawsuits. The amount in dispute must typically be at least a couple hundred thousand dollars to justify the cost. Here is a general breakdown of expenses:

These costs add up fast. A will contest that requires extensive discovery, depositions of multiple witnesses, and expert medical proof can easily exceed $100,000 in total. If the case goes to trial, several additional days of attorney fees, expert witness fees, and court costs accumulate rapidly.

Who Pays?

Under the “American Rule,” each side pays its own attorney fees, regardless of who wins. The person contesting the will pays upfront costs out of pocket. Most probate attorneys work on retainer, charging thousands of dollars before any work begins. The attorney deducts fees from the retainer as work progresses, and any unspent balance is returned to the client at the end of the case.

There are exceptions. The executor, who has a duty to defend the will, is typically reimbursed by the estate for legal expenses — as long as they act in good faith. If a court finds a contest was frivolous or brought in bad faith, it may impose sanctions or require the contestant to reimburse the estate’s legal costs. Some attorneys take will contest cases on contingency (25% to 40% of the recovered amount), but this is rare because will contests are difficult to win.

No-Contest Clauses: What You Need to Know

A no-contest clause — also called an in terrorem clause — is a provision in a will that says any beneficiary who challenges the will forfeits their entire inheritance. These clauses are designed to discourage contests, and they can be powerful deterrents. However, their enforceability varies dramatically from state to state. Courts generally disfavor these clauses and interpret them narrowly because they are considered “forfeiture provisions.”

In California, the “probable cause” exception is critical. Under Probate Code § 21311, a no-contest clause is enforced only against direct contests brought without probable cause. This means if you have a reasonable, good-faith basis for your challenge — supported by facts and evidence — the clause will not strip your inheritance even if you lose.

In Florida, no-contest clauses are completely unenforceable. A beneficiary in Florida can challenge a will without any risk of forfeiting their share. In New York, the law provides specific safe harbors — including objections based on forgery or revocation by a later will — that protect beneficiaries from triggering the clause, as long as the challenge is brought with probable cause.

Before taking any action to challenge a will that contains a no-contest clause, consult with a probate litigation attorney. Even preliminary actions — like demanding an accounting or questioning a fiduciary’s conduct — could potentially trigger the clause in strict-enforcement states.

What Happens if the Will Is Invalidated?

If a judge rules the will is invalid, the outcome depends on whether a prior valid will exists:

• Prior valid will exists: The court may reinstate the earlier will and distribute the estate according to its terms. This often happens when a later will is found to be the product of undue influence or fraud.
• No prior will exists: The estate is distributed under the state’s intestacy succession laws, as if the testator died without any will at all. This can result in a dramatically different distribution than what the testator intended.
• Partial invalidation: A judge may strike down only specific provisions of the will — such as a bequest obtained through undue influence — while leaving the rest of the will intact.

When a will is fully invalidated, the personal representative must stop administering the estate under the invalid will and begin again under intestate laws or the prior valid will. A new administrator may be appointed if the original no longer qualifies.

How Intestate Succession Works

Under intestate succession laws, state statutes determine who inherits and how much they receive. The general hierarchy is:

1. Surviving spouse — receives the largest share, often the entire estate if there are no children
2. Children — share the estate equally (includes adopted children, but typically not stepchildren unless legally adopted)
3. Parents — inherit if there is no spouse or children
4. Siblings — inherit if there are no parents, spouse, or children
5. More distant relatives — nieces, nephews, grandparents, cousins
6. The state — if there are no identifiable living relatives, the property “escheats” (reverts) to the state

The Spousal Elective Share: A Built-In Protection

Even without contesting a will, a surviving spouse has a powerful legal tool: the elective share. Under the laws of every separate-property state, a surviving spouse cannot be completely disinherited against their wishes.

The elective share allows a spouse to claim a statutory portion of the estate — typically between one-third and one-half — regardless of what the will says. The process is called “taking against the will.” The claim must be filed within a limited time, often a few months after probate proceedings begin. Under the augmented estate approach used in some states, the spouse may claim a share of the couple’s combined property — sometimes as much as 50% — proportional to the length of the marriage.

In community property states like California, each spouse already owns half the couple’s community property, providing an automatic layer of protection. A testator can only give away their half of community property — the surviving spouse’s half is already theirs.

Children, by contrast, do not have protected inheritance rights. A parent can disinherit a child entirely and intentionally. However, a child accidentally omitted from a will — such as a child born after the will was executed — may still have a claim under state law as a “pretermitted heir.”

Mistakes to Avoid When Contesting a Will

Will contests are hard to win and easy to lose. Here are the most common mistakes — and the specific consequence of each one:

• Waiting too long to act. Missing the statute of limitations means losing your right to contest entirely — even if your evidence is strong. In California, that window is just 120 days.
• Not hiring a probate attorney early. Estate law is complex, and even small missteps — like filing in the wrong court or missing a procedural deadline — can derail your case before it begins.
• Lacking sufficient evidence. Emotions and suspicion are not evidence. You need medical records, witness testimony, financial documents, and expert opinions to meet the “clear and convincing” standard.
• Ignoring the no-contest clause. Filing a contest without first understanding whether a no-contest clause applies can result in losing your entire inheritance — even if the will is otherwise favorable to you.
• Contesting without standing. If you are not an heir, beneficiary, or person who would inherit under intestacy law, the court will dismiss your case immediately.
• Underestimating the cost. Will contests can run into tens of thousands of dollars. If the estate is small, the cost of litigation may exceed what you stand to gain.
• Destroying or mishandling evidence. Original documents, letters, emails, and financial records must be preserved. Destroying or failing to preserve relevant evidence can result in court sanctions or a weakened case.
• Assuming the will is set in stone. Many people believe a signed will cannot be challenged. This is not true. If the will was signed under pressure, forged, or made when the testator lacked mental capacity, it can be invalidated.

Do’s and Don’ts of Contesting a Will

Do’s

• Do consult a probate attorney immediately — because deadlines are short and the process is procedurally demanding.
• Do gather evidence early — including medical records, prior will drafts, emails, and witness contact information, before memories fade and documents disappear.
• Do consider mediation first — because it is faster, cheaper, and confidential, and courts often require it before trial.
• Do verify your standing — by confirming you are an interested party with a financial interest that would be affected.
• Do prepare for emotional difficulty — because will contests strain family relationships and can last months or years.

Don’ts

• Don’t file out of anger or disappointment — because courts only hear contests based on legal grounds, not personal feelings.
• Don’t ignore a no-contest clause — because doing so may cost you your entire bequest if your challenge fails.
• Don’t represent yourself — because probate litigation involves complex procedural rules that non-lawyers routinely mishandle.
• Don’t delay requesting medical records — because hospitals and providers may destroy records after a certain period, and you need them to prove incapacity.
• Don’t discuss the case publicly — because anything you say on social media, in text messages, or to other family members can be used against you during discovery.

Pros and Cons of Contesting a Will

Pros

• Restores the testator’s true intent — if the will was created under fraud, forgery, or undue influence, contesting it honors the deceased’s real wishes.
• Protects disinherited heirs — spouses and children who were unfairly cut out can reclaim their rightful share.
• May lead to a favorable settlement — because the vast majority of contests settle out of court, often on terms favorable to the contestant.
• Holds bad actors accountable — caregivers, attorneys, or family members who abused their position face legal consequences.
• Can reveal hidden assets or misconduct — the discovery process often uncovers financial irregularities that benefit all heirs.

Cons

• High cost — attorney fees, expert witnesses, and court costs can reach six figures in complex cases.
• Low success rate at trial — only about 1% of will contests succeed at trial, though settlement rates are much higher.
• Emotional toll — litigation puts enormous stress on family relationships that may never recover.
• Delays estate distribution — a contest can freeze the estate for months or years, preventing all beneficiaries from receiving anything.
• Risk of losing inheritance — if the will contains a no-contest clause and you lose, you may forfeit your entire bequest.

Key Entities and Their Roles

Understanding who does what in a will contest helps you navigate the process:

• Testator — the person who created the will. They are deceased by the time any contest occurs, so the court relies on evidence of their intent and capacity.
• Contestant — the person filing the challenge. They bear the initial burden of proof.
• Proponent — the person defending the will, usually the executor or a named beneficiary. They must prove the will is valid once the contestant presents initial evidence.
• Executor/Personal Representative — the person named in the will to manage the estate. They have a fiduciary duty to defend the will, and their legal fees are typically reimbursed by the estate.
• Probate Court/Surrogate’s Court — the court that has jurisdiction over the estate. In New York, this is the Surrogate’s Court. In California, it is the Superior Court’s probate division.
• Mediator — a neutral third party who facilitates settlement discussions outside of court. The mediator does not make rulings — they guide communication.
• Expert Witnesses — medical professionals, forensic handwriting analysts, and psychologists who provide testimony to support or refute claims of incapacity, undue influence, or forgery.

FAQs

Can you contest a will after probate is complete?
No. Once probate is finalized and the estate is distributed, contesting the will is almost impossible. You must act within your state’s statute of limitations.

Can a disinherited child contest a will?
Yes. A child who was disinherited has legal standing if they would have inherited under intestacy law, but they must prove a specific legal ground.

Does a no-contest clause guarantee my challenge will fail?
No. Many states, including California and New York, do not enforce no-contest clauses against challenges brought with probable cause. Florida does not enforce them at all.

Can I contest a will if I am not named in it?
Yes. You need legal standing, not a spot in the will. If you would receive more through intestate succession, you can challenge it.

How long does a will contest take?
Yes, it takes a significant amount of time. Most contests take 6 months to 2 years to resolve. Complex cases with appeals can last much longer.

Can a surviving spouse be completely disinherited?
No. Every state provides either elective share or community property protections to prevent full disinheritance of a spouse.

Is mediation required before going to trial?
Yes, in many jurisdictions. Courts in Florida, California, and other states strongly encourage or require mediation before trial.

Can I contest only part of a will?
Yes. You may challenge a specific provision rather than the entire will. The court can strike one bequest while leaving the rest intact.

Do I need a lawyer to contest a will?
Yes, it is strongly recommended. Probate litigation involves strict deadlines and complex rules that are very difficult to navigate without legal training.

What if no one defends the will?
Yes, the contest becomes much easier. When no one steps forward to defend the will, the court may grant the contestant’s request with little to no opposition.