Unlike some other areas of law, including business litigation, probate and trust litigation is almost always entirely unexpected. In other areas, disputes often simmer for years before they become legal claims. Sometimes, that happens in probate matters as well. But typically, such litigation begins when heirs discover unanticipated changes in the will or trust created by a deceased friend or family member. While resolving the matter amicably without filing a lawsuit is always preferable, tight deadlines under probate and trust law may require the help of an expert probate & trust litigation attorney to preserve your rights.
An aggressive Pasadena probate and trust litigation attorney, like Silvio Nardoni, knows how to protect your interests in these instances. Your legal team quickly analyzes the situation. Then, we take prompt and sustained action to execute the plan we’ve developed. During it all, we look for lasting solutions that bring as much closure as possible.
What are the Ways to Contest a Will?
"Interested parties," who are typically people who would have benefitted from a will, can usually challenge such documents. Many people pursue these actions because they feel they have been treated unfairly. Others simply want to ensure that the decedent’s wishes are properly carried out.
California law does not allow heirs or beneficiaries to second-guess the the person who makes a will. But judges in the Golden State do entertain such challenges under the following circumstances:
- Lack of Capacity: Unsound mind or memory is perhaps the most common issue in probate litigation. Essentially, when signing a will, the person must understand the nature and amount of their property, the identity of their heirs, and the way the will disposes of the property. The challenging party must establish that the testator (the person whose will it is) lacked capacity at the time of signing. Even people with dementia sometimes have lucid periods. Sorting out the difference between decline in mental sharpness and true lack of capacity takes judgment honed through years of experience. That’s something your probate and trust litigation attorney can advise you about.
- Undue Influence: This is closely related to lack of capacity and the rules are rather complex. Essentially, the challenging party must establish the presence of coercion, force, duress, or fraud which materially affected the contents of the document. Special presumptions often apply if there was a confidential relationship involved, such as caregiver/patient or attorney/client. Someone getting a larger share than others doesn’t always mean there was undue influence, but it’s a starting point to developing a careful family history that may spell the difference in the outcome of a case.
- Revocation: Many times, wills and trusts are not public records. So, it is not unusual to uncover documents with conflicting provisions during the discovery process. Then, attorney and client must sort out the sequence of events that led to one person signing very different plans.
What Happens If I Contest the Will or Trust?
Pasadena probate or trust litigation begins in earnest when the challenging party files a petition to stop probate or to revoke a trust. All current and potential parties to the action must receive notice. That includes all potential heirs, the named beneficiaries, the executor, and any alternate executors.
At the subsequent hearing, the challenging party must prove a legal basis for disregarding the written document offered by an opposing party. In some cases the standard of proof is a preponderance of the evidence (“more likely than not”), but other situations require “clear and convincing” evidence, a more difficult standard. After such hearing, the judge may throw out the challenge, overturn the entire document, invalidate part of it, or defer action until later.
California is a community property state. Special rules apply to allow a surviving spouse to claim a share of the estate. Such individuals may be entitled to a 50/50 share of any property acquired after the marriage regardless of what the will or trust says.
Your Pasadena Probate and Trust Litigation Attorney
If the will or trust contains unexpected provisions, you need to act quickly to defend any potential rights you have. By the same token, prompt action is also necessary if someone challenges your loved one’s will or trust. For a free consultation with an experienced Pasadena probate and trust litigation attorney, contact the Law Office of Silvio Nardoni. Convenient payment plans are available.