Hands of Elderly Parent and DaughterMost 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 she thought and wanted, nor can expert witnesses meet her to evaluate her capacity. If the documents were executed many years ago, the trail of evidentiary breadcrumbs may be faint. A lawyer who contests old estate planning documents may find inspiration in Sherlock Holmes.

Increasingly, however, the fight over Mom’s trust will flare during her lifetime. For example, if Mom has moderate Alzheimer’s disease and a family member petitions the court to appoint a conservator over her estate (i.e., financial affairs), the court may review Mom’s estate plan and modify its terms if appropriate. Through the “substituted judgment” process laid out in the California Probate Code, the court for example might cancel a recent trust amendment on the ground that Mom did not sign it of her own free will, thereby restoring the prior version of the trust. In the conservatorship setting, the court need not wait for Mom’s death to evaluate the validity of the trust documents, and an earlier review may lead to a better result if evidence presently available, such as the testimony of a key witness, may be lost with the passage of time.