If you find your inheritance being reduced or eliminated and you want to take action to protect yourself in court, you may want to first consider California No Contest clauses.  California Trusts and Wills often contain a no contest clause that states you will be disinherited if you challenge the terms of the Trust or Will.  And while California no contest clauses have been severely limited in recent years under California law, they still can apply to certain actions you take to challenge a Trust or Will.

In this course, we discuss the application of California no contest clauses in more detail and offer our views on how best to deal with this difficult issue.  If you would prefer to read about this topic, you can find our written blog post here.

The Facts

In this video we cover the basic ground rules for California no contest clauses and provide the factual scenario we will use for the next two video lessons.

The Law

Partner Stewart Albertson provides his professional opinion on how to deal with California no contest clauses found in California Trusts and Wills.

The Talk

Partners Stewart Albertson and Keith A. Davidson discuss their views of how to deal with California no contest clauses.

Finding the right key for your case

How do you select a lawyer to represent you in a Trust or Will litigation matter? It can be a frustrating process.

What we suggest to people is to be comfortable with the person you are meeting with before hiring a lawyer. Lawyers have a fairly bad reputation, but that reputation does not apply to all lawyers. You need to meet with several lawyers and make sure you are comfortable with the lawyer you select.

A few questions we recommend asking include: does the lawyer sound like they know what they are talking about? Do they have an interest in your case? If they are interested in your case, what are they interested in? Is it an interesting fact situation, legal situation, or something they feel compelled to address?

After asking a few questions, sit and see what your comfort level is with the person. If you are comfortable with the person and they sound like they know what they are talking about—and are interested in the case—then you probably found the right lawyer for you.

The most important thing is the relationship between the attorney and the client. There will always be ups and downs in every litigation case ad you need to be able to work together and trust each other in good times and in bad. If you feel comfortable in all this, then generally you have found the right attorney for you.

Ya Wanna Fight???

Occasionally we are asked about fighting against a big firm. Maybe your Trustee decides to hire a big firm in Los Angeles, New York, Chicago, Boston, or some other big city. How are you going to fight your Trustee when he or she is represented by a big law firm? That’s a fair question.

Many people think that large law firms have unlimited resources and can crush a small firm in litigation. But in Trust and Will litigation that tends to be false. First, large law firms tend to be far more expensive—meaning their client will feel the financial pressure of litigation before you do.

Second, large firms have a hard time doing anything “outside of the box” because of the many partners to which each lawyer must answer. That means if anyone does anything novel they may be questioned or challenged for it later by the higher-ups. As a result, most big firms engage in a traditional style of litigation, which is fairly predictable.

Third, the California Code of Civil Procedure applies to everyone in California—big firms and small firms alike. Yes, it takes work to enforce the rules, but after having done it many times against big firms, we can easily attest that the rules are applied against big firms just as well as small firms.

A specialist, boutique firm is smaller, more nimble, and can react appropriately and more strategically than most large law firms in Trust and Will litigation. As a result, a specialty firm can develop and employ a unique strategy that better fits your case.

The strength-2

I have seen many lawyers argue themselves OUT of a win by talking too much in court. The first rule of oral argument in court is that if you do not need to say anything because the judge is agreeing with you, then SHUT UP. You do yourself no service by re-hashing a point the court already accepts, and you run the risk of changing the court’s mind against you.

In those cases where the court is not going your way, then you do need to speak up. And here is the best advice I can give anyone speaking with a judge in court: listen to the judge and answer his or her question. Sounds simple enough, but again it is rarely practiced.

So often people come to court prepared to argue what they think the issue is, or what they fear the weak point is. But the court often sees the issue a little differently. You have to understand your legal arguments and be prepared to speak, but arguing a point the judge is not asking about is a waste of time and effort. More importantly, you can frustrate the judge and lose the argument altogether.

The best oral arguments I have had in court come from entering into a conversation with the court. The judge raises an issue or question, I listen to what he or she is asking about, and I formulate my response to address that concern.   You must always remember that you are engaging in a conversation with the court. Coming into court with a pre-packaged argument and then not varying from your script is a sure recipe for disaster.

And when the court agrees with you and starts peppering the opposing party with questions, shut up.  At times, your best argument can be silence.

simplicity

How do you write a winning brief? Say what you are going to say, say it, and then say what you said. That is an old rule in writing and it applies to well written legal briefs also. The biggest problem with most written legal arguments is the length. As Winston Churchill once said of a very lengthy report “This document by its very length defends itself against the risk of being read.”

Judges are busy people. The court staff who review most of the pleadings before the judge reads it are also busy people. They have to sort through thousands of pleadings on a daily basis and try to make sense of it all. Yet so many people (lawyers included) think that the judge has a full Sunday afternoon dedicated to siting down with a nice cup of tea and fully reading and enjoying your written pleading. No, no, no. At most a judge may have fifteen minutes to review your work and determine what points you are making.

That means written legal arguments must be presented in a very different manner than any other writing. First, you have to tell the judge what you want him or her to do. What action should the court take? Just say it upfront. For example “the Court should grant this motion because ….” The word “because” is very important because (see what I did there) it forces you to put a point on your thought. If I say “the court should grant this motion” and stop there then the judge does not know why that should be done. Tell the judge why as soon as possible. Do it in your first sentence.

Next, you have to tell the judge what legal authority you have to support the request. Judges like to follow the law (its kinda their thing), so give them the law. It should be short and to the point. Not so short that it makes no sense, but also not any longer than required to convey the point.

Finally, conclude and get out. Your job in any written legal argument is to say what you need to say as quickly and clearly as possible and then STOP. There is no reason to restate the points again, and again, and again. Some lawyers just cannot help themselves from writing too much. There is also a fear that the point may not be made. But in reality it is often the smallest light that cuts through the fog. Simple, concise language covering less than a page conveys a better and more powerful message than ten pages of legal prose.

 

Facts_ Not too much...not to few-4

When you are faced with a California Trust or Will lawsuit, you have to respond. But what does a response look like? How much do you have to say and what effect does your response have on your case?

Responses are funny things. Sometime a Judge may read the response prior to your next hearing and have some comments on the facts involved. Sometimes they will not do so. In theory, everything you state in a response is hearsay and cannot be used as evidence by the Court. In practice, that is usually the case, but not always.

At times, a response is never reviewed by the judge, and the case simply progresses to trial where only the evidence presented in the courtroom is considered. Other times, the response is read and affects any number of preliminary rulings by the court.

As a result, your response needs to be prepared to give enough details to help, when needed. But your response should not give too much detail either, in the event facts or evidence changes over time as discovery is conducted. Sometimes a favorable fact becomes hard to prove if witnesses or documents fail to support the presumed fact. For that reason, you do not necessarily want to state every presumed fact at the outset of your case. Just state what you know. If you do not know a fact, but believe it to be true, then you can say that.

Remember that responses must be verified under penalty of perjury—so don’t lie in your response. You want the facts contained in your response to be as truthful as possible. But every case has a few unknown or obscure facts that must be ascertained or clarified along the way.

In all, your response should be short and to the point. The term “short” being relative to the complexity of your case. Don’t worry about leaving something out because you will have plenty of opportunity to fill in the missing information at time of trial.

 

Good Lawyers need Good Judgment

Law is a subjective pursuit. Only after everything is said and done can you look back and diagnose the good and the bad. But when you are in the heat of battle in a lawsuit, there rarely are any clearly right answers…or clearly wrong answers for that matter. Sometimes you just have to jump off a cliff and hope for the best.

Presenting your case in a court of law is highly subjective. Ultimately, only the viewpoint of the judge or jury matters, and their viewpoint may be very different from your own. Remember that you have lived with your case for years before it ever sees the light of day at trial. In some Trust and Will cases, the family issues have taken decades to develop to the point where litigation starts. There is no way a judge or jury will understand or see the issues from your perspective…not completely.

The goal then is to exercise good judgment to decide how to present your case at each stage of the litigation. By the time you get to trial, you should know a lot about the evidence you have, the witnesses you have, and (more importantly) the evidence you do NOT have. You should also know the facts, witnesses, and documents the opposing party has as well.

The mistake many parties make is to take ALL the facts, witnesses, and documents into trial to present to the judge or jury. That can be a BIG mistake. Trying to deluge a judge or jury with too much information is a great way to paralyze them from making any decision.

The better approach is to narrow down the information to the most important issues you want to address. You don’t want to carpet-bomb the court, you want to make a targeted strike that will get to the heart of the issues you care the most about.

For example, if you want to have a Trustee removed, focus on the facts that support removal, but do not focus on facts that have nothing to do with removal (such as the Trustee’s DUI from twenty years ago, or their ten-year-old bankruptcy filing). Facts from the distant past rarely persuade a judge to take action NOW. For Trustee removal, you need facts that show imminent danger will occur if removal is not granted.

Moreover, you really need to pick your top three strongest arguments and go only with those three points. And then drop two of them. It sounds silly to narrow you case to a single point, but the beauty of simplification is that it makes decisions simple. The problem with simplification is you must exercise good judgment to decide which arguments to focus on. Plus, it takes a lot of work to figure out which claims are the best versus the worst.

Judgment makes all the difference when it comes to simplification. And without simplification, your case is sunk because confusion causes paralysis in decision making.

Time's Up!

When faced with a Probate Court Petition that you do not agree with, you must object. Luckily, in California you have some leeway on when you can object because our Probate Code allows interested parties to object orally at the initial hearing. In other words, you technically do not have to have a written objection before the initial hearing date.

But that does not mean that objecting orally is the best way to go. In most cases, we prefer to file a written objection at least five days before the hearing date to ensure that the objections are preserved.

Probate court is a court of equity—meaning the court can take action, issue orders, and approve petitions anytime there are no objections. Even when there are objections the court can overrule the objections and issue orders—although the law requires a trial at which to present evidence to decide most probate court matters.

The point is that if you fail to object in writing, and if you fail to show up on time at the probate court hearing, then you may be out of luck. Once the court issues orders or approves a petition, it takes a good deal of work to overturn the result—assuming you can overturn it at all.

If you are going to rely on an oral objection at a probate court hearing, then be sure to show up on time. If you want to play it safe, then file your written objection well before the hearing date so the judge will be sure to read it.

Release Trap

  • The waiver and release problem

The Trustee wants to be done with the Trust administration and decides to have the beneficiaries sign a waiver and release so a final Trust distribution can be made. But waivers and releases are not always the best way to proceed in Trust matters because they can be challenged and overturned by a beneficiary after the Trust assets are distributed.

The law places a heavy burden on Trustees to ensure releases are not obtained unfairly. Since Trustees are in a position of power over beneficiaries (and control the purse strings of the Trust), any waiver or release obtained from a beneficiary in favor of a Trustee is suspect.

  • How waivers and releases fail

For starters, Probate Code section 16004.5 states that any release that is conditioned on a beneficiary receiving an otherwise required Trust distribution is invalid. And that scenario happens all the time—a Trustee demands a signed release before making a distribution. That is a clear recipe for disaster because the release will fail and a future lawsuit will occur.

Furthermore, Probate Code section 16464, provides more ways in which to set aside a release, which include:

  1. the incapacity of the beneficiary,
  2. where a release was obtained by a bad act of the Trustee,
  3. where the release involves a bargain that is not “fair”, or
  4. where the beneficiary was not fully informed of his rights and all the necessary material facts.

That’s a lot of ways out of a release!

  • So how do you properly end a Trust administration?

Since a release can be overturned many different ways, the best approach is to seek court approval of a Trust accounting because that closes the door to future lawsuits by the beneficiaries without any doubt. But if an accounting is out of the question, then at least approach a release in the best way possible.

First, never condition a release on the distribution of Trust assets. In fact, make a preliminary distribution of assets BEFORE asking for a release. That will prove that the Trust distribution was not conditioned on a distribution of Trust assets.

Second, have the beneficiary review the release with a lawyer of their choosing so they cannot complain later of not understanding the implications of the release.

Third, disclose as much information about the Trust and Trust assets to the beneficiary before asking for a release. Since a release can be set aside if the beneficiary was not fully informed of all rights and material facts, it is imperative that the Trustee disclose all known information to a beneficiary before asking for a release. And the disclosure should be done in writing so you have proof of what was disclosed.

  • Don’t sign what you don’t understand

If you are a beneficiary and have been asked to sign a release or waiver under suspicious or unfair circumstances, do not sign anything until you have a lawyer review the release with you. This is especially true where the Trustee conditions a Trust distribution to you on your signing a waiver and release.  While there are ways to overturn a release, you do not want to have the burden of doing so if you don’t have to.

  • The bottom line

Court-approved accountings are the best protection a Trustee can have against later beneficiary lawsuits. But if you want to go the waiver and release route, at least be sure to follow the rules and create a waiver and release that is likely to be upheld if you are ever sued by a beneficiary in the future.

 

 

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.