Code Section Group

Probate Code - PROB

DIVISION 7. ADMINISTRATION OF ESTATES OF DECEDENTS [7000 - 12591]

  ( Division 7 enacted by Stats. 1990, Ch. 79. )

PART 2. OPENING ESTATE ADMINISTRATION [8000 - 8577]

  ( Part 2 enacted by Stats. 1990, Ch. 79. )

CHAPTER 3. Probate of Will [8200 - 8272]

  ( Chapter 3 enacted by Stats. 1990, Ch. 79. )

ARTICLE 3. Contest of Will [8250 - 8254]
  ( Article 3 enacted by Stats. 1990, Ch. 79. )

8250.
  

(a) When a will is contested under Section 8004, the contestant shall file with the court an objection to probate of the will. Thereafter, a summons shall be issued and served, with a copy of the objection, on the persons required by Section 8110 to be served with notice of hearing of a petition for administration of the decedent’s estate. The summons shall be issued and served as provided in Chapter 3 (commencing with Section 412.10) and Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure. The summons shall contain a direction that the persons summoned file with the court a written pleading in response to the contest within 30 days after service of the summons.

(b) A person named as executor in the will is under no duty to defend a contest until the person is appointed personal representative.

(Amended by Stats. 2011, Ch. 308, Sec. 11. (SB 647) Effective January 1, 2012.)

8251.
  

(a) The petitioner and any other interested person may jointly or separately answer the objection or demur to the objection within the time prescribed in the summons.

(b) Demurrer may be made on any of the grounds of demurrer available in a civil action. If the demurrer is sustained, the court may allow the contestant a reasonable time, not exceeding 15 days, within which to amend the objection. If the demurrer is overruled, the petitioner and other interested persons may, within 15 days thereafter, answer the objection.

(c) If a person fails timely to respond to the summons:

(1) The case is at issue notwithstanding the failure and the case may proceed on the petition and other documents filed by the time of the hearing, and no further pleadings by other persons are necessary.

(2) The person may not participate further in the contest, but the person’s interest in the estate is not otherwise affected. Nothing in this paragraph precludes further participation by the petitioner.

(3) The person is bound by the decision in the proceeding.

(Enacted by Stats. 1990, Ch. 79.)

8252.
  

(a) At the trial, the proponents of the will have the burden of proof of due execution. The contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. If the will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate.

(b) The court shall try and determine any contested issue of fact that affects the validity of the will.

(Enacted by Stats. 1990, Ch. 79.)

8253.
  

At the trial, each subscribing witness shall be produced and examined. If no subscribing witness is available as a witness within the meaning of Section 240 of the Evidence Code, the court may admit the evidence of other witnesses to prove the due execution of the will.

(Enacted by Stats. 1990, Ch. 79.)

8254.
  

The court may make appropriate orders, including orders sustaining or denying objections, and shall render judgment either admitting the will to probate or rejecting it, in whole or in part, and appointing a personal representative.

(Enacted by Stats. 1990, Ch. 79.)

PROBProbate Code - PROB