California Probate and Trust Legal Summary Spring 2013

Catanese & Wells, a Law Corporation provides a quarterly newsletter to the California probate and trust professional community including lawyers, accountants, professional fiduciaries and insurance providers. www.cataneselaw.com.

This issue of the Probate and Trust Legal Summary identifies some general rules and areas of interest related to wills and their enforcement.

Production of the Will and Administration in the Absence of a Trust Instrument

The custodian of a will is required to deliver the original will to the Superior Court within 30 days after death of the testator. The will is to be filed in the County where the decedent's estate is to be administered. Failure to comply with the statute renders the custodian liable for any damages sustained by any person by reason of such failure. (Cal. Prob. C. §8200(b)). At any time after the death of the decedent an interested person may petition the court for an order allowing for the probate of the will. The court determines the time and place of the decedent's death and the jurisdiction of the court. (Cal. Prob. C. §8006).

Generally, a will may be proven on evidence of one subscribing witness. However, if a will contest occurs additional evidence is required to prove the existence of the will. This may be done through an affidavit or deposition of a witness or by testimony of witnesses who have personal knowledge that the will is what it purports to be. A will is generally presumed to be duly executed where the witnesses are dead, unavailable or unable to testify or recollect the circumstances of the will's creation. (This is discussed in the 1936 California Supreme Court case Estate of Pitcairn 6 C.2d 730.)

Contesting a Will

Any interested person may file a written objection to admission of a will for probate. (Cal. Prob. C. §1043). An interested person includes and heir, devisee, child, spouse, creditor, beneficiary, or any other person having a property right in or claimed against a trust estate or the estate of a decedent which may be affected by the proceedings in court. (Cal. Prob. C. §48(a)(1)).

Particular concern must be given to the existence of any "no-contest" clauses in a will. In 2008 California adopted and enacted new legislation regarding no-contest claims. The new legislation applies to instruments which become irrevocable on or after January 1, 2001. The pre-existing statutes continue to apply to any instruments which were irrevocable before January 1, 2001. Under the new statutory scheme enacted in California at Section 21310 of the Probate Code the no-contest clause in the operative instrument may be violated if the contest of the will is a direct contest without probable cause. Probable cause is defined as existing if at the time of the filing of the contest the facts known to the litigant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery. (Cal. Prob. C. §21311(b)).
The new statute defines a "contest" as a pleading filed with the court by a beneficiary that would result in a penalty under a no-contest clause if the no-contest clause is enforced. Further, a direct contest is one where the litigant challenges the instrument based on one or more of the following claims: forgery, lack of due execution, lack of capacity, menace, duress, fraud or undue influence, revocation of instrument, disqualification of beneficiary, or transfer to a drafter or related person. (Cal. Prob. C. §21310(b).

Great care must be exercised whenever a beneficiary challenges a will with a valid no-contest clause because should the court find the no-contest clause was violated the beneficiary may forfeit any benefit or gifts under the will. And, if a filing is made by a beneficiary with the court and it is later withdrawn before trial, the court will likely find a violation of the no-contest clause and a forfeiture of any benefits under the will. (Estate of Fuller (1956) 143 Cal. App.2d 820.)

For further questions feel free to contact our offices.

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