Category: Will/Trust Contests

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Late Trust Contest May Trigger Enforcement of No Contest Clause

No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest is untimely.  That’s the upshot of Meiri v. Shamtoubi (2022) ___ Cal.App.5th ____, a Court of Appeal opinion issued last week. An … Continue Reading

And the Rocket’s Red Glare – Trustee Removal Petitions May Be Costly to Those Who Launch Them

Trustee removal petitions, like Centennial Fountains, are one of the more common fireworks in California trust litigation.  We’ve explored how such petitions are litigated in prior post and a podcast. In Bruno v. Hopkins (2022) ___ Cal.App.5th ___, the California Court of Appeal broke new ground by finding that a beneficiary who in bad faith … Continue Reading

Elder Abuse Restraining Orders May Prevent Estate Planning Changes

Can a California court stop others from changing an elder’s estate plan?  Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust. In White v. Wear (2022) 76 Cal.App.5th 24, the Court of Appeal reviewed the issuance of an elder abuse restraining … Continue Reading

Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine.  This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to … Continue Reading

Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?

California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of proof? The disfavored sibling or the favored one? Florida courts have decided that dutiful children, and spouses, should not be … Continue Reading

Look Before Leaping Into an Anti-SLAPP Motion

Suing the suer is a common strategy in California civil litigation. A special motion to strike, known as an anti-SLAPP motion, can be a powerful weapon against retaliatory litigation.  We have explained the use of such motions in trust and estate disputes. More specifically, we have explored their application to petitions to enforce no contest … Continue Reading

Disney Grandson Languishes in the “Unhappiest Place on Earth”

While Disneyland may be the “Happiest Place on Earth,” a California probate court may be the opposite for a Disney heir, mused the U.S. Court of Appeals in Lund v. Cowan (9th Cir. 2021) 5 F.4th 964. Bradford Lund, a 50 year-old grandson of Walt Disney, sued the probate judge who rejected a settlement agreement … Continue Reading

“Inheritance Forgery” Podcast – Theft from Tigers Averted

Fort Hayes State University in Kansas, home of the Tigers, almost lost a $20 million donation because of a forged codicil (amendment) to the will of Earl Field. Earl was a World War II pilot, successful businessperson, and booster of FHSU. He died in 2013 at the age of 98. The forgery was proven only … Continue Reading

“Mental Health Disorder” Must Be Proven Along with Delusion

When are delusions enough to invalidate an estate plan?  The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) 62 Cal.App.5th 112. The case involves a 90-year-old woman who favored a charity and disinherited the two grandchildren with whom she had been close.  The appellate court found that California … Continue Reading

When Do California Trust and Estate Cases Have Preference in Trial Setting or Appeal?

Getting a civil or probate case to trial in California can take a long time.  The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed.  While most California trust and estate disputes do not require juries, a multi-day court trial remains a challenge in a pandemic … Continue Reading

SB 1146 Facilitates Remote Depositions and Electronic Service, But Leaves Challenges in California Trust and Estate Litigation

As we enter the eighth month of the COVID-19 pandemic, California courts and litigants continue to grapple with how to move civil cases forward. Senate Bill 1146, approved by Governor Newsom on September 18, 2020, and effective immediately, facilitates the taking of depositions by allowing court reporters to attend remotely and enables electronic service of … Continue Reading

Clear and Convincing Evidence Standard Continues to Apply in California Appeals

Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard. In Conservatorship of O.B. (2020) 9 Cal.5th 989, the Supreme Court held that “when reviewing a finding that a fact has been proved … Continue Reading

California Powers of Appointment: Follow Instructions When Exercising

In California, a trustor (person who creates a trust) can confer a “power of appointment” on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust.  The trustor can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to … Continue Reading

What California Trust and Estate Litigation Will Arise from the Economic Downturn?

The COVID-19 pandemic has idled workers and the coming weeks will bring more news of business closures and bankruptcies.  After a decade of sustained growth, we are facing a recession of uncertain depth and duration.  The New York Times recently reported that some Americans are turning (or perhaps returning) to “financial therapy” for support. In … Continue Reading

I’m Still Standing – California Supreme Court Allows Trust Amendment Contests in Probate Court

Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) 8 Cal.5th 822, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200. The Court of Appeal had narrowly construed section 17200 … Continue Reading

Elder Abuse Is Not a Trojan Horse – Bad Faith Must Be Shown for Double Damages Under Probate Code Section 859

Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation.  It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes property through undue influence, or who takes property through the commission of financial elder abuse. While the first … Continue Reading

When Defending Becomes Offensive: California Court Expands No Contest Clauses to Defense of Invalid Amendment

No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an invalid … Continue Reading

Why Contingency Fee Representation Is Hard to Obtain in Trust and Will Contests

We often receive inquiries about whether we will represent parties in California trust and will contests on a contingency basis.  In contingency representation, the lawyer does not collect a fee unless the client obtains a favorable settlement or court judgment.  Contingency fees usually are structured on a percentage basis, with the lawyer receiving perhaps 25-40 … Continue Reading

Resolving California Trust and Estate Disputes – A Mediator’s Perspective

Many California trust and estate disputes are resolved by mediation instead of a final adjudication in the Superior Court.  Mediation can offer a custom-crafted resolution to a case that avoids the stress, expense and unpredictability of a trial.  When parties choose to mediate, there is often a deal to be found even if the positions … Continue Reading

Mental Capacity Standards in California Civil Litigation

What mental capacity standards apply in California civil litigation?  Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville.  I’ll offer highlights here. Short answer: it depends.  The mental capacity standard varies depending on the setting.  The policy rationale for the different standards is elusive, so as … Continue Reading

Anti-SLAPP Case Features Arm Wrestling Siblings and a Prep School

California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder.  Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses. The opinion reminds California trust and estate counsel to be … Continue Reading

When Is a Will Valid in California?

Although much wealth passes today through trusts and beneficiary designations, we occasionally handle California probate disputes that turn on the validity of wills, sometimes involving high value estates. The standard practice in California estate planning is for wills to be typewritten and prepared by attorneys, but those steps are not necessary.  A holographic, i.e., handwritten, … Continue Reading

Take It or Leave It: The Perilous Decision of Whether to Violate a No Contest Clause

One of the most dramatic areas of California trust and estate litigation is no contest clauses.  No contest clauses bring a made-for-tv excitement to the practice of trust and estate law because of the risk of disinheritance.  Yet such clauses are widely misunderstood, even among attorneys.… Continue Reading

Look for Mild Cognitive Impairment in California Trust and Estate Disputes

Mental incapacity and undue influence are the most common theories used to try to invalidate wills, trusts and beneficiary designations in California and elsewhere.  Occasionally, the subject in a trust and estate dispute has a thorough cognitive evaluation performed contemporaneously with his or her estate planning change.  But, more often than not, the medical record … Continue Reading
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