Will and Trusts Contests

Will Contest - - A will contest is an action to prevent probate of a tendered will or to revoke a will that has been admitted to probate. Although it has some attributes of a civil action, it is still a probate matter governed by the Probate Code.

There are basically three methods of pursing a will contest. The first, and perhaps more preferable way would be to file a contest prior to probate. By filing the contest before there is a probate may lead to a faster settlement, if appropriate, as there will be a substantial delay in the final settlement and distribution of the estate, as well as a division in Executor or Special Administrator fees. Secondly, a petition can be filed within 120 days after the will is admitted to probate. Finally, one has the right file a complaint to intervene with respect to the will. If no one contest the probate of a will within the 120 day period (after the will is admitted to probate), the probate of will is conclusive, unless there is extrinsic fraud. If a person is a minor or incompetent, and there was no conservator or guardian appointed at the time the will was admitted to probate, they will have the right to bring a will contest any time prior to the entry of final judgment on the distribution of property.

There are a number of grounds for contesting a will, including, (1) whether the will was properly executed; (2) the decedent’s testamentary capacity to make a will; and (3) whether the decedent was subject to fraud, duress, or undue influence.

Trust Litigation - - Trust Litigation Can Take Many Forms. First the validity of the Trust can be attacked on many grounds, including, lack of capacity to execute a trust (which is a higher standard than executing a will), undue influence, fraud, duress, menace, and mistake. Secondly, even if the trust is valid, there is always the issue of whether the Trustee has breached his or her duties to the beneficiaries. A trustee owes the trust beneficiaries an undivided duty of loyalty. The trustee may not, by the slightest impropriety, seek any advantage from a beneficiary. A trustee may be in breach of this duty if the trustee acts in bad faith, knowingly, but in good faith or negligently. Even if the trustee is not negligent, a breach may still occur when the trustee acts outside the terms of the trust.

No Contests Clauses ­- No-contest clauses are probably the biggest single obstacle to estate and trust litigation. They have evolved to cover much more than traditional will contests. Today, they can be used to disinherit a beneficiary who undertakes almost any action that frustrates the testator or settlor's plan (except for certain actions that are immune on public policy grounds). Considering the potentially drastic impact of violating a no-contest clause, the possible existence and application of a no-contest clause in a will or trust instrument should be considered in virtually every case.
Our firm has had extensive experience in this area and would be more than happy to assist you in determining your legal rights to an inheritance.