Any person interested in an estate may contest a will. The Probate Code defines “interested persons,” in relevant part, to be: children, heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered . . .” The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. That means you must have a financial interest to contest a will. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. For instance, a person leaves all his property to a girlfriend and not his children. A friend or neighbor cannot contest the will even if he/she believes that the children should have received the property because the friend or neighbor will not benefit financially whether the will is admitted or denied probate. Of course the children can contest the will because they would financially benefit if the will is not admitted to probate but the friend or neighbor cannot contest it.

If a person accepts benefits under the will, he may be estopped from contesting the will. To avoid estoppel, the person may have to return the benefits that he received under the will in order to contest it. In certain situations, the return of benefits may not be required. For more information on contesting a will after you have received benefits click here.

In a recent case, the issue of “interested person” was at issue.  In that case, two wills were offered for probate.  The daughter of the deceased offered a 2002 will for probate.  The executrix of a 2005 will offered it for probate.  She also contested the 2002 will offered by the daughter. The executrix named in the 2005 will was not an heir and she did not benefit from he 2005 or 2002 will.

The court first found that the 2005 will was not executed with the proper formalities and could not be admitted to probate.  The judge then ruled that the executrix of the 2005 will was not an “interested party” of the 2002 will and could not contest it.  The court then admitted the 2002 will to probate.

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