Unlike some other areas of law, probate and trust litigation is almost always entirely unexpected. In other areas like business litigation or real estate litigation, disputes often simmer for years before they become legal claims. While that occasionally happens in probate matters, probate and trust litigation begins when heirs discover unanticipated changes in the will or trust created by a deceased friend or family member.
While resolving the matter amicably without filing a lawsuit is always preferable, tight deadlines under probate and trust law may require the help of an expert probate & trust litigation attorney to preserve your rights when you have limited time to respond and act.
An aggressive probate and trust litigation firm like Archimedes Law Group protects your interests in probate and trust litigation matters by carefully analyzing the situation, developing a strategic legal plan, and taking prompt and sustained action to execute the plan we’ve developed. During the entire process, we look for solutions that bring a sense of closure to each of our client.
What are the Ways to Contest a Will?
“Interested parties” are typically people who would have benefitted from a will and can usually challenge such documents. Many people pursue these actions because they feel they have been treated unfairly by the conditions specified in a deceased family member’s will while others simply want to ensure that the decedent’s wishes are properly carried out.
California law does not allow heirs or beneficiaries to second-guess the person who makes a will, but judges in the Golden State do entertain such challenges under the following circumstances:
Undue Influence
This is closely related to lack of capacity and the rules are rather complex. Essentially, the challenging party must establish the presence of coercion, force, duress, or fraud which materially affected the contents of the document. Special presumptions often apply if there was a confidential relationship involved, such as caregiver/patient or attorney/client. Someone getting a larger share than others doesn’t always mean there was undue influence, but it’s a starting point to developing a careful family history that may spell the difference in the outcome of a case.
Lack of Capacity
Unsound mind or memory is perhaps the most common issue in probate litigation. Essentially, when signing a will, the person must understand the nature and amount of their property, the identity of their heirs, and the way in which the will disposes of the property. The challenging party must establish that the testator (the person whose will it is) lacked capacity at the time of signing. Even people with dementia sometimes have lucid periods. Sorting out the difference between decline in mental sharpness and true lack of capacity takes judgment honed through years of experience.
Revocation
Many times, wills and trusts are not public records. So, it is not unusual to uncover documents with conflicting provisions during the discovery process. When discovered, the legal team at Archimedes Law works closely with our cleient to sort out the sequence of events that led to one person signing very different plans.
How Do I Challenge a
California Trust?
Contesting a will happens in probate court. The entire process is court supervised. However, such supervision does not apply to trusts. That’s the reason many people create them in the first place.
To challenge a trust, a person must file a separate action, though the grounds are very much the same. With regard to mental capacity, Probate Code Section 811 goes into considerable detail on this point. Moreover, individuals may challenge trusts based on breach of fiduciary duty, fraud, and a recently-created theory, intentional interference with an expected inheritance.
The Legislature changed the “No-contest” clause of this in 2010 to state that a beneficiary who files a legal challenge is disinherited automatically. These are very common in California trusts, and courts almost always apply such clauses, unless the petitioner had probable cause to bring the action. At Archimedes Law, we advice our clients when best to petition the court and when such petitions have lead to a loss of any inheritance they would have otherwise received.
What Happens If I Contest the
Will or Trust?
Probate or trust litigation begins in earnest when the challenging party files a petition to stop probate or to revoke a trust. All current and potential parties to the action must receive notice. That includes all potential heirs, the named beneficiaries, the executor, and any alternate executors.
At the subsequent hearings, the challenging party must prove a legal basis for disregarding the written document offered by an opposing party. In some cases the standard of proof is a preponderance of the evidence (“more likely than not”), but other situations require “clear and convincing” evidence, a more difficult standard. After such a hearing, the judge may throw out the challenge, overturn the entire document, invalidate part of it, or defer action until later.
California is a community property state. Special rules allow a surviving spouse to claim a share of the estate. Such individuals may be entitled to a 50/50 share of any property acquired after the marriage regardless of what the will or trust says.
Archimedes Law Group —
Your Probate and Trust Litigation Attorney
If the will or trust contains unexpected provisions, you need to act quickly to assert any potential rights you have. By the same token, prompt action is also necessary if someone challenges your loved one’s will or trust. For a free consultation with an experienced probate and trust litigation attorney, contact Archimedes Law Group. Convenient payment plans are available.
