The Tools of War: How to arm yourself with knowledge for a battle in Probate Court
If you're going to do battle in Probate Court do you need to know more about Trusts and Wills or more about litigation? The obvious answer is you need to know about both. And while knowing about Trusts and Wills is critical, knowing a thing or two about civil litigation is also a must.
For example, under California Probate Code section 1000, the rules of civil procedure apply to actions filed in probate court (meaning all Trust, Will, and estate lawsuits). This includes general civil procedure, civil discovery and the rules of evidence.
That sounds important, but what does it mean? Let’s break it down into three general categories:
- Civil procedure—things like motions and demurrers
- Civil discovery—written discovery, depositions, and expert designations
- Rules of evidence—including foundation, hearsay, relevance, etc.
In this post, we’ll discuss the first category—civil procedure. The next two posts will explore the use of civil discovery and the rules of evidence in probate court matters.
While it’s true that the rules of civil procedure apply to probate court matters, there is an exception where a different rule is stated in the Probate Code. For example, in a civil lawsuit the defendant has 30 days after being personally served with a complaint and summons to file an answer with the Court. In Trust and Will matters, however, an interested party has the right to appear and object for the first time at the first hearing (see Probate Code section 1043). And in civil lawsuits a complaint does not need to be “verified” (which means signed under penalty of perjury); whereas in probate court verification is required (see Probate Code section 1021).
Demurrers and Motions.
While some of the rules are different under the Probate Code, other rules are not. For example, demurrers. A demurrer is a funny word to describe what essentially is a motion to determine if the Plaintiff (or “Petitioner” in the probate world) has stated enough in the initial petition to make a legal claim against the defendant (or “Respondent” in probate court). Every lawsuit has some basic information that must be stated in order to continue with the suit. When a suit fails to state the basics, the opposing party can ask the court to dismiss the suit. The Court, if it agrees, will usually dismiss the suit with “leave to amend” meaning the lawsuit can be re-filed with the correct information stated.
A demurrer does not test the truthfulness of the claims made in the petition, it merely determines if the factual allegations are enough to form the basis of a claim. Demurrers aren’t always that useful in litigation, but they serve a purpose in some cases and can be used in probate court where appropriate.
The same applies to other procedures such as Motions to Strike, Motions for Summary Judgment and Motions for Judgment on the Pleadings. All are fair game in probate court matters, although their usefulness may or may not apply in probate.
Motions for Summary Judgment.
Take motions for summary judgment (“MSJ”), they tend to be used a lot in civil actions. An MSJ is designed to allow the Court to decide an issue, or sometimes an entire lawsuit, where there are no factual issues in dispute. Most of the time, MSJ’s are not granted by the Court because there’s always at least some factual issue that must be decided in a lawsuit, which can only be resolved at trial before a judge or jury. If two people are fighting over the existence of a contract, then the facts of whether a contract was created or not can only be decided at trial. Whereas, if the contract creation is not in dispute (everyone agrees a contract exists), then interpretation of the contract terms may only involve legal issues—not factual determinations—allowing the Court to rule on a properly filed MSJ.
In most probate court actions, however, almost everything is a factual dispute. For example, if a Trustee is being accused of mismanaging the Trust assets, that’s a factual dispute. The Court must hold a trial and hear evidence to determine whether or not the Trustee acted appropriately. For this reason, most of the time MSJ’s are not useful in probate court. But they are available and can be used in the right situation.
The bottom line is that if you are going to battle in Probate Court you must arm yourself with knowledge of civil procedure if you hope to be victorious.