In this video, partner Keith A. Davidson discusses why your lawsuit to overturn a California Trust or Will is going to be hard.

The following is a transcript of this video:

So in this video, I want to talk about why your trust contest lawsuit is going to be hard. And, trust me, it will be hard. It doesn’t matter if you’re contesting a trust, a trust amendment, a will, a will codicil; you’ve got a big job ahead of you. And the main reason why it’s a hard job is because you as the person contesting have the burden of proof. So you have to be the one to convince the judge to give you what you want. And if you don’t meet that burden, you lose. So you’re default is you’re going to lose unless you can convince the judge that you should win.
The other side, who has the document in their favor, their default is they’re going to win, unless you’re able to prove that you should win. So they’re in a stronger position right out of the gate and that’s why it’s difficult.

Second, you as the contesting party have to bring forth admissible evidence. And that’s an important distinction. Admissible evidence is not the same thing as talking to people and having they say, “Oh, yeah, I heard a thousand times that your parent would never disinherit you.” Well, hearing something from a parent is probably hearsay and it probably won’t be admissible in court. So you have to find evidence that you can actually present in court that will be acceptable under our California Rules of Evidence. And then, you have to prove that there was either lack of capacity or undue influence, or something along those lines, at the time that the trust or trust amendment was created. So whatever date that is, that’s the date where the undue influence or lack of capacity has to have been present.

Well, that’s really hard to do when you’re the person contesting because you weren’t there probably. If there was a bad actor trying to coerce your parent into creating a trust amendment, they don’t tend to write things down. They don’t tend to tell people that, “Hey, I’m planning to coerce this person.” It’s all done under the cover of secrecy. And so, it’s your job to have to peel back the layers of secrecy and find some evidence to help you support your case.
In California, statistically speaking, only about 30% of trust contest cases that go to trial prevail. So that means 70% of cases fail. That means that if you have a trust contest case, you’ve got a big job ahead of you. That doesn’t mean your trust contest case is a lost cause, it’s not. But it does mean that you’re going to have to really dig in, do the work, take the depositions, and try to find the evidence that you can find to build up the strength of your case.

There’s a good chance that your case will settle at some point, probably at mediation, because the vast majority of cases settle. But, even there, if you want to get a good settlement, you’ve got to build your case. You’ve got to build that evidence. Otherwise, you’re not going to be offered much, even at the time of settlement. So, don’t be disheartened, trust will contest cases are possible, but they are a lot of work. You’ve got to dig in and you’ve got to do that hard work.

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