Listen to this post

As a child, your parents, teachers, and/or some other adult influence probably sat you down and recounted Aesop’s classic fable, The Tortoise and the Hare. “Slow and steady wins the race,” they told you. The slow, methodical, and thoughtful tortoise would always win out over the fast-paced, impulsive hare.

Well, you’re a grown-up now, so it’s probably time you realized they were lying to you. At least as far as probate litigation goes. 

As you already know, California probate law imposes extremely tight deadlines on proceedings to contest trusts, to bring creditor’s claims, to revoke the probate of a will, etc. This means that in probate litigation, a “slow and steady” approach is more than likely to get you thrown out of court.

Perhaps you already know this!  Perhaps in your childhood, every once in a while, you were able to sneak away from the room where your parents were reading Aesop out loud for hours on end, and instead you made your way to the room where the cartoons were on. There, you were able to ignore The Tortoise and the Hare’s harmful fiction, and instead learned valuable life lessons imparted by a far more realistic pair of anthropomorphic animal rivals: Wile E. Coyote and the Roadrunner.

Coyote was the tortoise in this equation – a slow, methodical planner always scheming up another plot to get one over on his longtime enemy.  But unlike the tortoise, Coyote always lost. Time after time, the Roadrunner left him splatted at the bottom of nonspecific Southwestern canyon, or smashed up against the side of a cliff face that looked like a tunnel just seconds before, because the Roadrunner knew what so many good probate litigators also know – speed wins.

Some probate litigators, however, take the wrong lesson from those cartoons. Rather than trying to emulate the Roadrunner’s speed, they decide to ape the Coyote’s devious creativity. 

The plaintiffs featured in the Court of Appeal’s recent decision of Hamilton v. Green (2023) 98 Cal.App.5th 417, for example, would have benefited by being a little less Coyote and a little more Roadrunner. In that case, a late amendment to their grandmother’s trust had left plaintiffs Dominic and Eric out in the cold, and so they brought a petition in probate court seeking to invalidate it. They adopted a tortoise-like strategy to do so, however – they brought their petition in March 2021, about 11 months after their aunt LaDonna (the trustee) served them with a notice of trust administration. The probate court correctly noted that they had brought their petition well beyond 120-day deadline to contest a trust instrument imposed by Probate Code section 16061.8, and dismissed their petition.

And so, stymied by the letter of the law, Dominic and Eric embraced their inner Coyote and hatched a plan to get around that pesky 120-day deadline. Forgoing the probate court entirely, they filed a civil complaint against LaDonna, accusing her of forging the trust amendment for the purpose of stealing away their inheritance. The complaint brought causes of action that included interference with inheritance rights, interference with prospective economic advantage, and interference with contract, each of which carried a statute of limitations that was far more forgiving than the Probate Code’s 120-day deadline. On demurrer, they argued that the 120-day deadline was not applicable to the complaint because their causes of action were civil claims seeking damages, not “an action to contest the trust.”

The trial court didn’t buy it. LaDonna’s demurrer was sustained without leave to amend. Plaintiffs appealed.

The Court of Appeal didn’t buy it either. The Court correctly noted that it was not bound by the label Dominic and Eric had placed on their complaint, but rather was empowered to look at the “substance” of the action and its “practical effect.”

And here, the practical effect was obvious. Though the plaintiffs’ complaint did not expressly ask the court to invalidate the trust amendment, it was nevertheless clear that plaintiffs had no interest in the trust absent such an invalidation. That is, Dominic and Eric could get nothing from their suit unless the Court invalidated the amendment. Though Dominic and Eric’s complaint was not a trust contest in form, it was very clearly a trust contest in function. In summary, the plaintiffs had missed their chance to act speedily and attempted to compensate for their slow and steady litigation practice with a Coyote-esque burst of creative jurisprudence.  California courts, however, do not award points for creativity. If your trust contest walks like a tortoise, quacks like a tortoise (tortoises quack, right?), and misses its deadline like a tortoise, that tortoise is getting tossed on demurrer, no matter how much you try to dress it up like a hare.