Buffington Law Firm’s Trust litigation attorneys often deal with situations in which our clients need to challenge a trust or a trust amendment. This is often a situation in which the client is, or was, a beneficiary of a trust, but somehow the trust was changed in a way that decreases our client’s share of the trust, or perhaps eliminates it altogether. Most trusts contain a no-contest clause that provides that, if a person challenges any part of the trust that person becomes completely disinherited. Sometimes the threat of the no-contest clause seems to make bringing a challenge to the trust too risky. After all, no one wants to risk disinheritance. The key is to know how to approach the situation with the law governing no-contest clauses in mind.
An actual trust (or will) contest is essentially a situation in which an attorney brings an action on behalf of his or her client asking the probate court to nullify either the entire trust, or perhaps a specific amendment to the trust. This may be an amendment to the trust in which an elderly parent suddenly disinherits one or more of the beneficiaries in favor of just one beneficiary. This may have been the product of undue influence. Sometimes the trustor may have suffered from legal incapacity. There are many ways that a skilled trust litigation attorney can challenge such a trust provision without risking disinheritance. In this brief blog article, we will examine a few of them. This article does not mention all of the ways that trust litigation attorneys can deal with no-contest clauses when bringing court action.
The first approach is the most obvious. If someone challenges a trust provision in court and wins, winning eliminates the risk of disinheritance. Of course, any attorney will tell the client that nothing in court is certain, and winning is never a 100% sure thing regardless of how strong the case appears. Secondly, sometimes the challenged trust or trust amendment does not provide anything at all to the client. In such a case the no-contest clause also fails to operate for the obvious reason that the client has nothing to lose as regards the no-contest clause since the client is already disinherited by the challenged instrument. Each situation involves careful legal analysis by an experienced trust litigation attorney.
Another way to deal with a no-contest clause is to analyze the trust to see if the offending amendment was authorized by the trust. Sometimes a skilled trust litigation attorney can determine that the amendment simply was not permitted by the terms of the trust itself. Buffington Law Firm’s trust litigation attorneys have successfully solved disinheritance situations without bringing a direct trust contest by bringing an action under Probate Code Section 17200 asking the Court to determine this. If done carefully and skillfully, this kind of challenge can nullify a trust amendment without bringing an actual trust contest. Yet another approach is to determine whether the property that is placed in the disinheriting portion of the trust (if it is not the entire instrument that disinherits the client) actually belongs there. Community property law and analysis can sometimes deal with the situation that way. Buffington Law Firm’s trust litigation attorneys have successfully applied this approach numerous times.
If you are dealing with a situation in which you believe that your inheritance has been tampered with, possibly requiring a trust contest, we invite you to call us for a free legal consultation. All consultations are with an experienced trust litigation attorney and are completely confidential and protected by the attorney-client privilege. There is never any obligation for the consultation. Call us today!