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Hi, this is Keith Davidson with Albertson & Davidson.  And in this video, I’m talking about what the court has the power to do with a trust or will amendment.

So if you have a case where you have a trust amendment that you don’t like.  Maybe the trust was amended at the last minute disinheriting you.  A lot of times people who aren’t used to this area of the law will say, “Well, why can’t the court just toss out the last amendment?  Everybody knows it’s invalid.  Everybody knows my mom or dad wouldn’t have wanted to do that?  Why can’t the court just toss it out, rather than having to go through this big, long litigation process?”

It really comes down to what our legal system is based on – which is due process of law.  And what that means from a practical perspective is that both sides have to be given a fair opportunity to bring in their evidence to court, the court has to decide whether or not that evidence is admissible using the rules of evidence, the California Evidence Code, and then whatever evidence is actually admitted by the court, the court or the jury (depending on who’s making the decision) then gets to decide the facts of the case.  Who’s telling the truth?  Who’s lying?  Who’s winning?  Who’s losing?  That’s the process that you have to go through.

The court really doesn’t have the power to decide on a trust amendment without giving everybody a fair opportunity to be heard in court.  And that’s what we call a trial.  And, unfortunately, in our system, it can take some time to get to a trial, because everybody has to be also given a fair chance to do discovery, to go out and find the evidence that’s relevant to their case.

So typically, a case might take anywhere from ten months to eighteen months to go from start to trial.  It could take longer.  It depends on the type of case, it depends on the issues that arise, it depends on the court’s calendar, the lawyer’s calendar, the parties’ calendar.  It all just depends on the circumstances of your case.

But what cannot happen is the trust cannot simply be thrown out, the trust amendment cannot simply be thrown out by the judge just looking at it and saying, “I don’t like this.  I’m going to get rid of it.”  It has to be an evidentiary process that’s fair and equal to both sides of the case.