By: Roger J. Buffington, Esq.
A trust contest is a type of litigation in which the challenger brings a trust petition for the primary purpose of causing the Probate Court to issue a ruling in which the Court formally invalidates either the entire trust, or perhaps a portion of the trust such as an amendment. Buffington Law Firm’s trust litigation team has frequently dealt with situations in which one side seeks to invalidate one or more trust provisions. In extreme examples someone may have obtained the Trustor’s signature on the new trust or trust amendment shortly before the Trustor’s death — to cite one recurring example. Sometimes the new trust amendment will completely change the trust bequests, upending an estate plan that has been in place for many years. Not infrequently, the person who engineered the drafting of the trust amendment and its presentation to the Trustor is the person who benefits from the new instrument or amendment. Incidentally, nearly all of the analysis in this article also apply to will contests. However, in recent decades it has become increasingly rare for estates in California to pass by will rather than by trust, and thus this article will focus on trust litigation.
In order to set aside a trust or a part of a trust, generally the Court must make a finding that the contested provision was obtained by either undue influence or outright lack of testamentary capacity. Contestant has initial burden of proof by clear and convincing evidence. [David v. Hermann (2005) 129 Cal. App. 4th 672, 684; Estate of Clementi (2008) 166 Cal. App. 4th 375, 384]. To meet the higher standard, the contestant must show that it is ‘highly probable’ that the challenged trust provision was the result of undue influence or incapacity (as opposed to ‘more likely than not’) [Mattco Forge, Inc. v. Arthur Young & Co. (1977) 52 Cal. App. 4th 820, 848]. In a typical trust contest the petitioner will normally allege both incapacity and undue influence. In practice, undue influence is a more common basis for a petitioner prevailing in a trust contest.
Under certain circumstances, a skilled litigation attorney can build a case in which the burden of proof shifts from the petitioner having to present clear and convincing evidence, to the proponent of the amendment or trust having to prove by a preponderance of the evidence (not clear and convincing evidence) that the disputed provision or instrument represented the trustor’s true intent. The burden of proof shifts to the proponent of the disputed provision upon a showing by the party asserting undue influence that the following elements are met: 1) the person alleged to have exercised undue influence had a confidential relationship with the testator; 2) the person actively participated in procuring the instrument’s preparation or execution; and 3) the person would benefit unduly by the testamentary instrument.. [Id.] Upon such showing, “…a presumption of undue influence may arise, shifting to the proponent of the disposition … the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.” [David v. Hermann (2005) 129 Cal. App. 4th 672, 684].
In addition to the usual grounds of undue influence and lack of testamentary capacity, there can be other grounds for a trust contest. Buffington Law Firm’s trust litigation team has dealt with several situations in which the evidence showed that a certain page in a trust document had been replaced with a different page, with very different provisions. In other cases, the signature of the trustor on the disputed document was itself disputed. Incidentally, these two situations illustrate why it is good practice for an estate planning attorney to have the trustor initial each page of the trust, and notarize the trustor’s signature. Neither of these are required by law, but they certainly represent best practice.
If you are involved in a trust or will dispute, Buffington Law Firm’s estate litigation attorneys invite you to contact us for a free legal consultation to evaluate your case. All consultations are with an experienced trust litigation attorney, and are completely confidential and protected by the attorney-client privilege. And of course there is never any obligation.