Affirmative Defense-2

  • The best defense is an Affirmative Defense

You have been sued on a Trust or Will dispute and you have to defend yourself. The most obvious defense is to disagree with the allegations contained in the petition filed against you. But there is another type of defense: the affirmative defense.

Affirmative defenses are independent legal and equitable reason as to why you cannot be held liable. In other words, even if everything the petition says is true, you still are not liable because of your affirmative defense.

The most often used affirmative defense is statute of limitations. For example, if you are served with Trustee notification after someone dies, you only have 120 days in which to file a Trust contest lawsuit. If you fail to do so in that timeframe, then you cannot prevail on your suit no matter how great your evidence is. The statute of limitations will block your recovery as an affirmative defense.

  • How do you best use affirmative defenses in your Trust or Will lawsuit?

For starters, most affirmative defenses will be waived IF you do not state them in your initial objection or answer. For that reason, most lawyers will throw in every affirmative defense known to man, a sum total of twenty to thirty affirmative defenses—many of which have no factual support, but there they are in the answer.

  • Use ’em or lose ’em

You definitely should include as many affirmative defenses as possible, but no every one known to man. Let’s be realistic, at some point the other side will ask for all your facts to support each defense (if the other side is good at what they do). If you don’t have the facts to support your defenses, they will be thrown out either before or at time of trial.

In some cases, an affirmative defense can be a powerful tool to stop a lawsuit in its tracks. In most cases, however, an affirmative defense could prove useful, but you won’t know for sure until more evidence is uncovered.

  • Here are some of the more common affirmative defenses:

Statute of limitations is nearly always pleaded as an affirmative defense, but it means little without facts to establish that statute of limitations was violated. Since this claim is waived if NOT pleaded at the beginning of the lawsuit, it is always a good idea to include it.

Failure to state facts constituting a cause of action is another common defense. Most of the time, this affirmative defense is useless, but you never know. Essentially, this defense just means that even if everything pleaded in the complaint is true, the plaintiff cannot win because he failed to include some essential element of his claim—a highly technical defense that’s rarely successful.

Estoppel, unclean hands, waiver, laches—each of these are separate concepts and separate affirmative defenses, but they have one thing in common: equity.

For example, estoppel simply means that a party should not be allowed to win because it would be unfair for some reason.

Laches means someone waited too long to take action and it would now be unfair to enforce the claim.

Unclean hands means the party being sued acted unfairly too, and waiver means someone (by their actions) waived their right to a claim.

Each of these equitable principles are hard to establish, let alone win. But they can be useful from time to time and they are waived if not pleaded in the response/answer, which is why you see them in nearly every response/answer.

  • Increase the strength of your defense

There are quite a few more affirmative defenses that apply depending on the type of case you have. This list gives you a few examples of the most commonly used defenses.

Affirmative defenses have an important place in your lawsuit, provided there are facts to support them. The goal is to figure out which defenses apply, or potentially apply, to your case and add them into your answer.