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Woman reading bookOn a road trip over the holidays, I listened to John Grisham’s Sycamore Row, as artfully read by Michael Beck. Published in 2013, it’s a sequel to Grisham’s first novel, A Time to Kill, and again features young country lawyer Jake Brigance. This time, instead of an accused man, he’s defending the handwritten will of Seth Hubbard. Hubbard, a shrewd businessman, had a terminal illness and near the end of his life wrote a new will to favor his housekeeper over this two children.

Are will contests in California like the contest featured in John Grisham’s legal thriller? Yes and no.

Hubbard’s children attack his will on two grounds: lack of mental capacity and undue influence. These are the same two theories that contestants commonly advance in California will contests and trust contests. The trial, which occurs in a fictional small town in Mississippi, features testimony from witnesses who interacted with Hubbard and a retained medical expert who discusses the cognitive effects of the pain medication Hubbard was taking. This matches the types of evidence usually seen at trial in an actual contest.

Yet the central question in the novel is why Hubbard made the abrupt change in his estate plan, i.e., what led him to favor the housekeeper over his children. Hubbard did not make any attempt to explain his motivation when writing out his last will, nor did he discuss his thoughts with anyone, even though he knew the immense value of his estate and that his kids were likely to challenge their disinheritance.

The mystery over Hubbard’s testamentary motivation provides a focal point for the drama that unfolds, but is unlikely in the real world. Lawyers write most wills and trusts, and they tend to document the expressed thoughts of their clients, especially when there is a dramatic change in the selection of beneficiaries that may be controversial. When people handwrite their wills, there may be no lawyer or witness involved such that the reasoning underlying the will may be less clear. Still, it’s unlikely that an individual such as Hubbard, with a large estate, would fail to divulge his motivations to anyone so as to imperil the validity of the will that he wrote.

To be sure, legal fireworks often explode when an elderly person changes his or her estate plan to favor a paid caregiver over family members. Recognizing the substantial risk of elder abuse, California Probate Code section 21380 generally treats donative transfers to “care custodians,” including caregivers and housekeepers, as presumptively the product of fraud or undue influence and thus void. While he faced other challenges, no such presumption of invalidity stood between Jake Brigance and validation of Hubbard’s will.

It’s also interesting that California will contests are decided by the presiding Superior Court judge, not a jury. There is a right to a jury trial in some states, and of course the presence of a jury enhances Grisham’s courtroom drama.

Sycamore Row features colorful characters and serpentine plot twists. While the central mystery is implausible, the novel drills deep into a family’s history, as is true in most of the contests I have litigated. Indeed, the turn of events that eventually leads to a will/trust contest often has a novelesque quality. Perhaps I’ll find inspiration to write when it comes time to retire and it’s too cold to be out fly fishing.

Photo of Jeffrey S. Galvin Jeffrey S. Galvin

Jeff Galvin is a partner at Downey Brand LLP. He represents clients in trust and estate litigation, and related civil disputes, in the Greater Sacramento area and across Northern California. He is also licensed to practice in Nevada. Many of Jeff’s clients have…

Jeff Galvin is a partner at Downey Brand LLP. He represents clients in trust and estate litigation, and related civil disputes, in the Greater Sacramento area and across Northern California. He is also licensed to practice in Nevada. Many of Jeff’s clients have no prior experience with litigation and he works to identify and pursue the results that matter most to them.

Jeff advises trustees, administrators and executors who find themselves in conflict with beneficiaries. He helps beneficiaries assert their rights in trust and probate estates. He often litigates cases involving claims of breach of fiduciary duty in which a beneficiary seeks to remove and/or surcharge a trustee, administrator or executor. He prosecutes and defends trust contests and will contests, which typically raise issues of mental capacity, undue influence and elder financial abuse. For example, he successfully defended a trust contest in a 25-day trial in Calaveras County and then defended the judgment on appeal. Jeff also has filed conservatorship actions to stop financial elder abuse.

Jeff is a graduate of UCLA School of Law. He is a member of the Executive Committee of the Trusts and Estates Section of the California Lawyers Association and serves as a host on the Section’s “Trust Me!” podcast.

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