Category: Will/Trust Contests

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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

By Jeffrey S. Galvin on May 21, 2018 Posted in Conflict Avoidance, Mediation, Will/Trust Contests

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

By Jeffrey S. Galvin on May 14, 2018 Posted in Evidence, Financial Elder Abuse, Mental Capacity, Will/Trust Contests

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

By Jeffrey S. Galvin on October 9, 2017 Posted in Inheritance Disputes, Legal Expenses, No Contest Clauses, Probate, Trust Administration, Will/Trust Contests

California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder. Last week, in Urick v. Urick (2017) ___ Cal.App.5th ___, 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?

By Tyson E. Hubbard on September 26, 2017 Posted in Estate Planning, Probate, Will Execution, Will/Trust Contests

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

By Tyson E. Hubbard on August 21, 2017 Posted in Beneficiaries, Conflict Avoidance, Creditor Claims, Estate Planning, Inheritance Disputes, No Contest Clauses, Trust Administration, Will/Trust Contests

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

By Jeffrey S. Galvin on July 10, 2017 Posted in Mental Capacity, Undue Influence, Will/Trust Contests

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

New Guidance on Role of Mental Health Experts in California Undue Influence Cases

By Jeffrey S. Galvin on October 31, 2016 Posted in Evidence, San Joaquin County Superior Court, Undue Influence, Will/Trust Contests

As a trust litigation attorney in Sacramento, I often make or defend against allegations of undue influence in the context of a trust amendment that favors one beneficiary over another. In this setting, what is the proper role of a mental health expert, such as a forensic psychiatrist, with regard to evaluating undue influence? Last … Continue Reading

Sacramento Trust and Probate Litigation “Boot Camp” Program

By Jeffrey S. Galvin on September 26, 2016 Posted in Mental Capacity, Sacramento County Superior Court, Undue Influence, Will/Trust Contests

The Sacramento County Bar Association’s Probate and Estate Planning Section hosted its first ever “boot camp” program on trust and estate litigation on September 20, 2016. As an alternative to the monthly lunch programs, the Section offered a six-hour seminar at its office at 425 University Avenue in Sacramento. The program drew a full house … Continue Reading

Court in California Trust Contest Invalidates Transfer to Drafting Attorney

By Jeffrey S. Galvin on August 15, 2016 Posted in Evidence, Inheritance Disputes, Undue Influence, Will/Trust Contests

“An ethical estate planning attorney will plan for his client, not for himself.” With those words, the California Court of Appeal recently ripped Southern California attorney John LeBouef for taking advantage “of an elderly and mentally infirm person to enrich himself.” In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the … Continue Reading

Watch Out for SLAPPs in California Trust and Estate Litigation

By Jeffrey S. Galvin on July 11, 2016 Posted in Inheritance Disputes, Legal Expenses, Probate, Trust Administration, Will/Trust Contests

In heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother … Continue Reading

Parent Custody Battles Leave Everyone Bruised

By Jeffrey S. Galvin on June 27, 2016 Posted in Advance Health Care Directives, Conservatorships, Financial Powers of Attorney, Mental Capacity, Undue Influence, Will/Trust Contests

Most California trust and estate disputes are emotionally intense, and none more so than sibling conflicts over the care of an aging parent. Like a child custody fight in the family law context, siblings battle over whether Mom will remain in the home where she lives, move in with one of them, or move to … Continue Reading

“You Don’t Have to Be Rich” to Need a Plan

By Jeffrey S. Galvin on May 16, 2016 Posted in Advance Health Care Directives, Asset Distribution, Inheritance Disputes, Probate, Will/Trust Contests

Prince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will … Continue Reading

Alzheimer’s Disease Requires a Close Look in California Trust Litigation

By Jeffrey S. Galvin on May 9, 2016 Posted in Inheritance Disputes, Mental Capacity, Undue Influence, Will/Trust Contests

For a richly-detailed profile of a woman’s experience with Alzheimer’s disease, read “Fraying at the Edges,” an article by N. R. Kleinfield that appeared on May 1, 2016 in the New York Times. The author follows Geri Taylor, who was first diagnosed with Mild Cognitive Impairment in 2012 at age 69, and introduces us to … Continue Reading

Undue Influence – A Titanic Challenge for Estate Planning Attorneys

By Jeffrey S. Galvin on April 11, 2016 Posted in Inheritance Disputes, Undue Influence, Will/Trust Contests

Spotting undue influence is no easy task for estate planning attorneys. When Mom wants to change her trust to favor Sally over Johnny, Mom presumably is making her own choice for her own reasons. But it’s also possible that Sally, behind the scenes, is pushing Mom to make the change. An estate planner is like … Continue Reading

California Trust Litigation Update: Trust Assets May Be Used to Defend Contests … Sometimes

By Jeffrey S. Galvin on March 22, 2016 Posted in Legal Expenses, Will/Trust Contests, Will/Trust Interpretation

A contest over the validity of a trust or a trust amendment is an expensive undertaking, typically requiring extensive discovery and a lengthy trial. Can a trustee use the trust’s assets as a war chest to fight off the contestant, even when the trustee is a beneficiary of the challenged trust document and thus has … Continue Reading

Opening the Curtains of Attorney-Client Privilege

By Jeffrey S. Galvin on March 7, 2016 Posted in Attorney-Client Privilege, Evidence, Will/Trust Contests, Will/Trust Interpretation

The attorney-client privilege, a bedrock principle of our legal system, protects confidential communications between clients and their attorneys, and the lawyer’s duty to preserve client confidences generally continues after the death of the client. Under the California Business and Professions Code, lawyers must “maintain inviolate the confidence, and at every peril to himself or herself … Continue Reading

What Role Should Mental Health Experts Play in Undue Influence Cases?

By Jeffrey S. Galvin on February 29, 2016 Posted in Evidence, San Joaquin County Superior Court, Undue Influence, Will/Trust Contests

At the start of trial recently in San Joaquin County Superior Court in Stockton, I sparred with opposing counsel over the role of the retained mental health experts with regard to testimony on undue influence. The contestant alleged that her brother unduly influenced their parents to disfavor her when they amended their trust. Sister retained … Continue Reading

How Fictional Is John Grisham’s Novel About a Will Contest?

By Jeffrey S. Galvin on January 25, 2016 Posted in Inheritance Disputes, Mental Capacity, Undue Influence, Will/Trust Contests

On 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 … Continue Reading

An Introduction to Department 129 of Sacramento County Superior Court

By Jeffrey S. Galvin on January 18, 2016 Posted in Probate, Sacramento County Superior Court, Trust Administration, Will/Trust Contests

This month Judge Steven M. Gevercer will replace Judge David F. De Alba as the probate judge in Department 129 of the Sacramento County Superior Court. Judge Gevercer was appointed to the bench by Governor Jerry Brown in 2012 and previously served in the California Attorney General’s Office. Judges typically spend a year or two … Continue Reading

You May Have to Challenge Mom’s Trust Amendment Before She Dies

By Jeffrey S. Galvin on January 11, 2016 Posted in Conservatorships, Inheritance Disputes, Mental Capacity, Will/Trust Contests

Most will and trust contests in California start several months after the death of the person who created the document. Such litigation has a forensic quality: did Mom have sufficient mental capacity back when she signed the will/trust, or was she the victim of undue influence? Mom is not around to testify as to what … Continue Reading

When Does Influence Become Undue?

By Jeffrey S. Galvin on November 24, 2015 Posted in Beneficiaries, Undue Influence, Will/Trust Contests

Undue influence is a major theme in trust and estate litigation. But when does advocacy for a change in an estate plan cross the line and become undue? There is no bright line test for undue influence under California law. Almost always, the proof is indirect. While there is no video of Sister pressuring Mom … Continue Reading

Welcome to our trust and estate litigation blog. Inheritance disputes are on the rise nationally as the baby boomers age and wealth passes from one generation to the next. This is high stress litigation, often pitting sibling against sibling or second spouse against step-children.

We cover hot button issues in California trust litigation and probate litigation, ranging from the flash points that we see in our cases to recent developments in the field. We discuss trust contests, will contests, and administration disputes. We explore issues of mental capacity, undue influence, fiduciary duty, and financial elder abuse. We follow how California courts grapple with dementia attributed to Alzheimer’s disease, which is becoming more prevalent in our population. We comment on local court practices, including procedures in Department 129 (the probate unit) of Sacramento County Superior Court. We hope that our blog will be of interest to estate planning professionals and to family members immersed in trust and estate disputes. We invite you to follow our blog and to get to know us through our posts.

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