When an estate plan doesn’t reflect what was intended
Unfortunately, even as we grieve our loved ones following their passing, problems frequently arise concerning distribution of their assets. This is particularly true when questions surface regarding the validity of their estate plans, due to suspicion of undue influence, incapacity, fraud or duress — or even just when beneficiaries simply know ‘something isn’t right’ regarding how the estate or trust is being administered. Through will and trust contests and related probate and trust litigation (e.g., concerning post-death estate or trust administration and distribution issues), we help restore our clients’ peace of mind that their loved ones’ true intentions are being preserved.
We also regularly are retained to pursue removal and/or surcharge actions against trustees, attorneys-in-fact or other fiduciaries for wrongfully managing — or in the most grievous cases, stealing — trust or estate (or an elder’s) assets.
A deadline you shouldn’t ignore
If you’ve received a notice or letter from a trustee, the clock already may be running. Once a trustee serves the notification required by Probate Code section 16061.7, an action to contest the trust generally must be brought within 120 days — or within 60 days of receiving a copy of the trust’s terms, if that is later.
Two features of that deadline sometimes surprise people:
- The period runs from mailing, not receipt. The statute that ordinarily adds days when something is served by mail does not extend it. The clock starts when the notice goes into the mail, whether or not it sat unopened for a week.
- You cannot avoid it by pleading around it. A civil complaint framed as interference with inheritance, conversion, quiet title or breach of fiduciary duty will still be treated as a contest if its practical effect is to invalidate the instrument. Relabeling the claim does not restart the clock.
Waiting to see whether a family situation resolves itself is the most common way a legitimate claim is lost. If a notice has arrived and something seems wrong, you should be careful to explore your options as soon as possible.
Grounds for a contest
Most contests turn on one or more of the following:
- Undue influence. California defines this by statute as excessive persuasion that overcomes another person’s free will and results in inequity, assessed against four factors: the victim’s vulnerability, the influencer’s apparent authority, the tactics used, and the equity of the result. The statutory definition supplements the older common law rather than replacing it, so both remain available.
- Lack of capacity. The standard is not fixed. California courts measure the capacity required against the complexity of the document: A relatively simple trust or amendment is judged by the same standard as a will, while instruments involving sub-trusts, tax planning or property elections are judged against a more demanding one.
- A presumptively disqualified beneficiary. Probate Code section 21380 presumes fraud or undue influence where a donative transfer benefits the person who drafted the instrument, or a care custodian of a dependent adult, among others. As to the drafter, the presumption is conclusive. As to a care custodian it is rebuttable, but only by clear and convincing evidence — and a beneficiary who fails to rebut it bears all costs of the proceeding, including fees.
- Fraud or duress in the procurement or execution of the instrument.
Since 2020, the care custodian presumption has also reached caregivers who marry the person in their care. Before that amendment, spouses and cohabitants were exempt, so a caregiver who married a dependent adult could take a gift free of the presumption entirely. That gap fortunately was eliminated, and a care custodian who marries a dependent adult may also be barred from claiming a statutory share as an omitted spouse.
Do I have standing? And what about the “no contest clause”?
Beneficiaries who’ve been written out of an estate plan sometimes are told they have no standing to challenge it, on the theory that the operative document no longer names them. But that’s not the law. The California Supreme Court has confirmed that if a determination regarding an instrument’s invalidity would make the claimant a beneficiary, that claimant absolutely has standing to pursue a contest in probate court.
No contest clauses (or their enforcement, at any rate) also can be narrower than their language suggests. Under the scheme operative since 2010, such a clause is enforceable only against a limited set of pleadings — most commonly a direct contest brought without probable cause — and the clause is strictly construed against forfeiture. Also keep in mind: (1) A no contest clause does not automatically carry forward into later amendments; to reach an amendment it must appear in that amendment or be expressly identified; and (2) The former “safe harbor” procedure, which once let a beneficiary ask the court in advance whether a proposed filing would trigger forfeiture, was repealed effective 2010. That protection now comes from the probable cause standard instead, which is one reason these decisions always should be made carefully … and ideally with advice.
When the document says the wrong thing
Not every problem is a contest. Sometimes an instrument is valid but does not say what the trustor meant it to say — thanks to a drafting error, an ambiguous interlineation, or just a provision that produces a result nobody intended. California permits a will or trust to be reformed to correct a mistake in expressing the trustor’s intent, on clear and convincing evidence of both the mistake and what was actually intended, even where the language itself is unambiguous.
That distinction obviously matters: A petition to construe and reform an instrument generally is not a contest, so it does not trigger a no contest clause, nor is it subject to the 120-day limitations period. But obviously one must tread carefully before filing, first resolving any questions surrounding possible applicability or enforceability of an instrument’s no contest clause.
Talk with us about your situationWe act for beneficiaries and heirs contesting instruments that do not reflect a loved one’s true intentions, and for trustees and executors defending estate plans against unfounded challenges. We are also retained as associate or litigation counsel by other attorneys for matters in this highly specialized area. Contact us or call 888-404-0111 for a confidential discussion.
The law behind this practiceWe do our best to maintain the governing authority on our site, current and annotated: The statutes that allow parties to pursue their claims and assert appropriate defenses, and the California appellate decisions that shape them — including Barefoot v. Jennings on standing, Bridgeman v. Allen and Hamilton v. Green on the 120-day deadline, Andersen v. Hunt on capacity, Robinson v. Gutierrez on care custodians, Aviles v. Swearingen on no contest clauses, and Estate of Duke and Packard v. Packard on reformation.