On Wednesday, April 18, 2018, in Contra Costa County Superior Court, in the case of Estate of Wong, The Demiris Law Firm, P.C. was able to successfully defend a settlement agreement and obtain orders to enforce the judgment admitting a contested will to probate. The intensely litigated will contest involved multiple family members, law firms, churches, and a charitable organization. Attorney Konstantine "Kosta" Demiris was able to prevail for his client in the inheritance dispute.
A no-contest clause or in terrorem clause, should be carefully drafted and implemented in estate planning to avoid potentially catastrophic consequences. Such a clause can punish a person from filing a pleading in any court and result in disinheritance.
Some people and some estate planners may insert a no-contest clause in the initial trust or will instrument and then years later draft an amendment to a trust or a codicil to a will or even a new instrument. However, if the subsequent instrument does not include a no-contest clause or is not drafted properly to reference a prior no-contest clause then it may not be protected. Also, if the original instrument does not properly refer to subsequent instrument(s) then such instrument(s) may not be protected. This can be very problematic as a no-contest clause only applies to "protected instruments" under Probate Code section 21310. Again, many no-contest clauses do not apply to future instruments (as such are not contemplated) and many amendments or subsequent wills may revoke prior instruments in their entirety.
Even in situations where prior instruments are referenced as being given full effect, no-contest clauses have generally been narrowly construed and found to be ineffective. The recent Court of Appeals case in Aviles v. Swearingen (2017) 2d Civil No. B281420, provides a prime example. In that case a restatement and amendment of a trust incorporated terms of a prior trust (which had a no-contest clause) but did not specifically include a new no-contest clause, nor did it cite specifically to incorporating the old no-contest clause.
If you find yourself in a litigation situation or potential dispute, it is best to consult with experienced counsel in such matters, such as the attorneys at the Demiris Law Firm to help guide you.
On Saturday, March 4, 2017, Konstantine “Kosta” Demiris will speak at the National Academy of Elder Law Attorneys (“NAELA”) Chapter California Summit in Oakland, CA. His topic will be “Drafting Trusts to Avoid Litigation.”
Some of the other topics and speakers include:
· Ruth Phelps, who will be presenting, "Trust Protectors: Bodyguard or Bully?– an overview of when and how to utilize them.”
· Kevin Urbatsch, who will be presenting, “Top Mistakes to Avoid When Drafting and Administering Special Needs Trusts.”
Other topics include: "How to get your client into a SNF", "Working Backwards: How to Avoid a Malpractice Claim", "Getting the Most Out of IHSS," and "What Effect will the New Administration have on Medicare and Medi-Cal."
Other speakers will include Kathleen Day-Seiter, Jim Hyuck, Kevin Prindiville and more.
Estate litigation and inheritance disputes in California often involve will disputes, contests of a will being deemed admitted to probate, and revocation of a will after it is admitted to probate. In California, a person with standing to contest a will or object to the will being deemed admitted to probate is provided a limited opportunity to contest a will and/or object to it being admitted to probate. A person with standing who is noticed of the probate of a will in California may contest the will on limited grounds. Those are outlined in Probate Code sections 8004 and 8250. The procedural requirements are also very specific. A contestant is required by law to obtain a summons that is issued and served with a copy of the objection to probate of the will and also with a notice of hearing of the a petition to for administration of the decedent's estate. The notice requirements for doing so are statutory.
Thereafter, if the contestant or objector loses or fails to win in preventing the will from being deemed admitted to probate then that party is not entitled to contest the will after it has been deemed admitted to probate. Under Probate Code section 8270(a) any interested person other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined the contest may petition to revoke the probate of the will.
In other words, in such will disputes, if a person is properly noticed of a petition to probate a will then that person is limited to statutory timelines and laws in contesting the will. If that party loses the contest they are barred from later petitioning to revoke the probate of the will after it has been deemed admitted to probate.
If you have questions about your rights or those of a loved one or friend concerning an inheritance dispute or contest, then you should immediately contact a licensed attorney to advise you.