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More About Probate and Trust Litigation

What is a Will Contest?

Wills can be contested on the grounds of undue influence, lack of testamentary capacity of the testator, fraud, and lack of compliance with proper will formalities.

Lack of Testamentary Capacity

Every adult of sound mind can make a will.  A person must 1) understand the nature of the testamentary act (know they are making a Will); 2) understand and remember his or her property (know what they own); 3) remember and understand his or her relation to his or her descendants, spouse, parents or those who are affected by the will (know his or her family and how they are related).  State laws dictate the threshold that must be overcome to prove that a Testator lacked testamentary capacity and usually the bar isn’t set very high.  For example, a person in California may show signs of dementia and yet may still have the capacity to sign a will.  Thus, the testimony of the witnesses to the will signing becomes crucial, and absent a doctor’s visit or a finding of incapacity within days of the will signing, lack of testamentary capacity is difficult to prove.

Undue Influence

Undue influence is when a person is subject to pressure to change their testamentary documents to do something, give someone power or leave property to someone who the testator would not normally choose except for the pressure being placed on them.   Usually nagging, threats and verbal abuse do not rise to the level of undue influence but it needs to be considered on a case by case basis.  As with lack of testamentary capacity, undue influence is difficult to prove.


A will procured by fraud is a will based on false or misleading information that the Testator is tricked into signing.  For example, a Testator is told they are signing his/her name to a power of attorney but is really signing a will instead.  Evidence is always a problem when attempting to prove fraud.  The person who can testify to what they thought they were signing is unfortunately deceased so unless a witness is willing to testify, fraud is very difficult to prove and prevail on in a will contest.

Will Formalities

A Will may be found to be invalid if it is not signed according the specific state law of the Testator.  In California the Will  must be signed by the Testator in the presence and hearing of two witnesses.

To be valid, a witnessed will must be 1) in writing; 2) signed by the testator; 3)signed or acknowledged by the testator in the the presence of two witnesses, both of whom must be present at the time of the signing and physically view the signing and 4) signed by the two witnesses with the understanding they are signing the testator’s will.  These formalities can be found in California Probate Code Section 6110(a)-(c) et. seq.

What is Trust Litigation?

Trust litigation may be necessary when disagreements arise during the trust administration process.  In California, the California Probate laws control California Trust law.  Anytime there is an issue between a trustee and a beneficiary, trust litigation may be necessary.  Litigation is often over violations of the terms of the Trust, a Trustee’s breach of fiduciary duty, or a Trustee’s failure to communicate and provide the beneficiary with requested information, beneficiary disputes or more.   Trust disputes are often highly emotional and it is our goal to attempt to resolve issues without having to resort to the Court system.  However, if one party is unwilling to participate or the difference are too far apart, sometimes court intervention is the only option for the parties.

What is Fiduciary Duty?

California Probate Code §39 defines a “fiduciary” as:

“A personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer to Minors Act…or other legal representative subject to this code.”

A fiduciary duty is person acting in one of the capacities named above with a  legal duty to act solely in another party’s interests. During the course of a fiduciary’s agency, he or she may not undertake or participate in activities adverse to the interests of his principal.  Fiduciary’s may not benefit from their relationship with their principals unless they have the principals’ express informed consent.  They also have a duty to avoid any conflicts of interest between themselves and the person they are representing or otherwise called their principals.  A fiduciary duty is the strictest duty of care recognized by the US legal system and requires a high standard of the duty of loyalty.

Why would anyone want to go to Court?

Our office does everything we can to resolve issue between family members amicably.  However, sometimes there are no other options but to pursue a Court intervention.  The benefit of having a judge make a decision is that issues are eventually resolved and there are final answers.  The detriment to this path is that the answers may come very slowly as the local court systems are over-loaded and everyone must wait their turn.  Litigation is generally expensive and one risks not having any say in the outcome because a judge is deciding rather than a compromise being reached.  In some cases, where family members refuse to work together or Trustee’s refuse to follow the law and or Trust provisions, court may actually save time and money by preserving assets that would have otherwise been squandered or stolen.  As all cases, each is unique and our office will do our best to help you wade through the myriad of choices available to you in your personal situation.