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 amendment be deemed a contest of the original trust?
The California Court of Appeal held last month in Key v. Tyler (2019) 34 Cal.App.5th 505 that a beneficiary’s defense of an invalid amendment to a trust, if made without probable cause, indeed can trigger a no contest clause and result in disinheritance. The court also confirmed that anti-SLAPP motions can be filed against petitions to enforce no contest clauses, a topic we have written on previously. Continue Reading
A conservatorship, once ordered by a Superior Court judge in California, deprives a person of the right to control his or her financial affairs or person, or both. When the judge appoints counsel for the proposed conservatee, what is the lawyer’s role? Are the lawyer’s ordinary duties of loyalty and confidentiality diminished in the conservatorship setting? Should they be?
What do you do if someone steals money or property from a trust or estate? 
Many California will and trust disputes arise from ambiguity in the document with respect to who is entitled to an asset. Maybe the document was hazy from the start or perhaps circumstances have changed such that the rightful recipient is no longer clear.
American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.” There are, of course, exceptions to this so-called “American Rule.” Among them is the “common fund” exception, which provides that one who incurs fees winning a lawsuit that creates a fund for others may require those passive beneficiaries to bear a fair share of the litigation costs. As the word “fund” suggests, the benefit must be a tangible, easily calculable sum of money. Courts have applied this exception to will and trust disputes where one beneficiary’s litigation causes other beneficiaries to receive a larger inheritance than they otherwise would have received.
Trust and estate litigation attorneys are “trusted advisors.” Like estate planning attorneys and other professionals who help clients with wealth management, we are fixers who assist clients with navigating conflict relating to a trust or estate. While we spar in the probate departments of the Superior Court of California, at the end of the day our main function is to advise clients so they can choose a resolution that fits their needs and is achievable in the situation at hand.
Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the