Trust Contest

Trust Contest

A California trust contest is started by filing a petition in the probate court. The petition must include facts supporting your case showing why the trust should be set aside.  For example, you may allege in your trust contest that you believe the trust was created at a time the settlor was mentally incompetent.  Should you not be sure if , in fact, the settlor was incompetent then you can make the claim on “information and belief.”
Certain allegations, such as fraud, must be plead with specificity.  This means your petition has to state the underlying facts supporting your fraud claim.  You must state enough facts to show there is some proof of each element of the fraud claim.

Jurisdiction & Venue

The petitioner must include sufficient information to prove that the court has jurisdiction over the matter and that the specific court has venue to adjudicate the matter.  The petition must state the facts supporting your case showing why the trust should be set aside:  the trust was created at a time the settlor was mentally incompetent;  you are entitled to share in the trust;  you should receive more than you are being given from a trust.

Timely Filing

You have 120 days to file a petition starting from the date the trustee sends you the statutorily required notice of trust distribution and up to four years to file if the trustee has not provided you with notice of trust distributions.

Notifying the Trustee of a Contest

Once your trust contest has been filed you will have to serve your petition on the trustee, the trust beneficiaries, and anyone else whose interest in the trust may be affected by your lawsuit.  Some parties served by mail and some will require personal service.

Challenge Based on Fraud

There are certain allegations, such as fraud, which must be plead with specificity.  This means the petition has to include sufficient facts to prove that a beneficiary made a false statement to the testator;  that the testator relied on this false statement;  and, that in reliance on the false statement changed their will to the benefit the beneficiary.

Challenge Based on Undue Influence

Undue influence is conduct by one party that causes a person to take an action that is different from the one they would have made if permitted to follow their own desires.  Estate of Baker (1982) 131 CA3d 471, 480.

California case law has held that the following are signs of undue influence:

1. Provisions that are unnatural, cutting off from any substantial bequests the natural objects of the decedent’s bounty;
2. Dispositions at variance with the decedent’s intentions that are expressed before and after the document’s execution;
3. A relationship between a beneficiaries and the decedent that gave the beneficiary an opportunity to control the testamentary act;
4. A testator whose suffered from a mental and physical condition that allowed another to control the testator’s freedom of will;  and,
5. A beneficiary under the trust who was active in procuring the execution of the instrument.

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