TRUST & WILL CONTEST
Will or living trust contest can take variety of forms. It may include proceedings to challenge the validity of will or living trust, to interpret the will or living trust provisions, to set aside conveyances to living trust, to impose constructive trusts on express trust assets, or to include or exclude beneficiaries.
The will contest or living trust contest may be filed because the deceased person was defrauded, because deceased person was unduly influenced by certain parties, or because deceased person has unintended parties as beneficiaries of the will or living trust. The fraud may be due to age, or due to decedent's lack of capacity.
A living trust contest may also be filed because the living trust was never funded. That is, the deceased person failed to transfer his or her assets into the living trust.
Finally, the living trust contest may be filed to interpret the terms of living trust. The interpretation of trust is to determine questions of construction of the trust instrument (Probate Code §17200(h)(1)); to determine the existence or nonexistence of any immunity, power, privilege, duty, or right (Probate Code §17200(b)(2)); to determine the validity of a trust provision (Probate Code §l7200()(3)); to ascertain beneficiaries of trust and determine to whom property shall pass on final or partial termination of the trust (Probate Code §17200(b)(4)); or to modify, terminate, or combine trusts (Probate Code §17200(b)(13)(14)).
A will contest may be filed to determine the validity of will for failure to execute the will properly. In such case, the determination is made by the testimony of the subscribing witnesses, and determination of handwriting of the decedent. In certain cases, lack of intent of the decedent may be a factor to determine the validity of a will.
Any party that may gain or lose money or property from the will or living trust may file a lawsuit to contest the will or living trust.
The statute of limitation to contest a living trust is 120 days after the living trust becomes irrevocable, and the trustee has given notice to the affected parties (Probate Code §16061.7(a)). Except in certain circumstances, lawsuit to contest the living trust would be dismissed by the court if the trust contest was filed beyond the 120-day statute of limitations. However, other statute of limitations apply if the notice is not given by the trustee.
The statute of limitation to contest a will is 120 days after the will has been admitted to probate (Probate Code §8225). Except in certain circumstances, lawsuit to contest the will would be dismissed by the court if the will contest was filed beyond the 120-day statute of limitations. However, other statute of limitations apply if the notice is not given by the executor of estate, or fraud has been committed to prevent the will contest.
No-Contest Clause:
A will or a living trust may contain a "no-contest clause" that affects the right of parties to contest the distribution of assets of estate or living trust.
A “contest” is defined by statute as “an attack in a proceeding on an instrument or on a provision in an instrument.” Probate Code §21300(a). A “no-contest clause” is a provision in an otherwise valid instrument that would penalize a beneficiary who contests. Probate Code §21300(b). No-contest or in terrorem clauses are valid in California.
A no-contest clause will not be enforced if:
(1) The beneficiary, with probable cause, brings a contest on grounds of (Probate Code §21306):
(a) Forgery;
(b) Revocation;
(c) Invalidity of any transfer to a disqualified person described in Probate Code §21350;
(d) A petition to remove a sole trustee as a disqualified person under Probate Code §15642(b)(6);
(2) The beneficiary, with probable cause, contests a provision of a will or living trust that benefits (Probate Code §21307):
(a) One who drafted or transcribed the instrument;
(b) One who directed the drafter concerning dispositive provisions, substantive content, or inclusion of the no contest clause (but not if the transferor affirmatively instructed the drafter to include the contents of the provision or no-contest clause); or
(c) One who witnessed the instrument.
(3) The beneficiary brings a declaratory relief action under Probate Code §§21320-21322 to obtain a court determination whether a particular motion or petition or other act by the beneficiary would be considered a contest under the no-contest clause (as long as that application itself does not require a determination of the merits of the motion, petition, or other act).
For more information call us at (310)553-5562.
Will or living trust contest can take variety of forms. It may include proceedings to challenge the validity of will or living trust, to interpret the will or living trust provisions, to set aside conveyances to living trust, to impose constructive trusts on express trust assets, or to include or exclude beneficiaries.
The will contest or living trust contest may be filed because the deceased person was defrauded, because deceased person was unduly influenced by certain parties, or because deceased person has unintended parties as beneficiaries of the will or living trust. The fraud may be due to age, or due to decedent's lack of capacity.
A living trust contest may also be filed because the living trust was never funded. That is, the deceased person failed to transfer his or her assets into the living trust.
Finally, the living trust contest may be filed to interpret the terms of living trust. The interpretation of trust is to determine questions of construction of the trust instrument (Probate Code §17200(h)(1)); to determine the existence or nonexistence of any immunity, power, privilege, duty, or right (Probate Code §17200(b)(2)); to determine the validity of a trust provision (Probate Code §l7200()(3)); to ascertain beneficiaries of trust and determine to whom property shall pass on final or partial termination of the trust (Probate Code §17200(b)(4)); or to modify, terminate, or combine trusts (Probate Code §17200(b)(13)(14)).
A will contest may be filed to determine the validity of will for failure to execute the will properly. In such case, the determination is made by the testimony of the subscribing witnesses, and determination of handwriting of the decedent. In certain cases, lack of intent of the decedent may be a factor to determine the validity of a will.
Any party that may gain or lose money or property from the will or living trust may file a lawsuit to contest the will or living trust.
The statute of limitation to contest a living trust is 120 days after the living trust becomes irrevocable, and the trustee has given notice to the affected parties (Probate Code §16061.7(a)). Except in certain circumstances, lawsuit to contest the living trust would be dismissed by the court if the trust contest was filed beyond the 120-day statute of limitations. However, other statute of limitations apply if the notice is not given by the trustee.
The statute of limitation to contest a will is 120 days after the will has been admitted to probate (Probate Code §8225). Except in certain circumstances, lawsuit to contest the will would be dismissed by the court if the will contest was filed beyond the 120-day statute of limitations. However, other statute of limitations apply if the notice is not given by the executor of estate, or fraud has been committed to prevent the will contest.
No-Contest Clause:
A will or a living trust may contain a "no-contest clause" that affects the right of parties to contest the distribution of assets of estate or living trust.
A “contest” is defined by statute as “an attack in a proceeding on an instrument or on a provision in an instrument.” Probate Code §21300(a). A “no-contest clause” is a provision in an otherwise valid instrument that would penalize a beneficiary who contests. Probate Code §21300(b). No-contest or in terrorem clauses are valid in California.
A no-contest clause will not be enforced if:
(1) The beneficiary, with probable cause, brings a contest on grounds of (Probate Code §21306):
(a) Forgery;
(b) Revocation;
(c) Invalidity of any transfer to a disqualified person described in Probate Code §21350;
(d) A petition to remove a sole trustee as a disqualified person under Probate Code §15642(b)(6);
(2) The beneficiary, with probable cause, contests a provision of a will or living trust that benefits (Probate Code §21307):
(a) One who drafted or transcribed the instrument;
(b) One who directed the drafter concerning dispositive provisions, substantive content, or inclusion of the no contest clause (but not if the transferor affirmatively instructed the drafter to include the contents of the provision or no-contest clause); or
(c) One who witnessed the instrument.
(3) The beneficiary brings a declaratory relief action under Probate Code §§21320-21322 to obtain a court determination whether a particular motion or petition or other act by the beneficiary would be considered a contest under the no-contest clause (as long as that application itself does not require a determination of the merits of the motion, petition, or other act).
For more information call us at (310)553-5562.