Legal Question in Wills and Trusts in California
My Brother signed a short typed will in the hospital early in the a.m. the day he died. There were two witnessed. This was in California. He was not on any heavy drugs. He did not leave anything to my sister, the only other surviving sibling, with whom he was not on good terms. As an aside, the hospital considered him of sound mind, as they discussed at lenght that he did not wish any live saving measures to be used. He had been being treated for cancer for some time. Now my sister is disputing the will. She is also the administrator of Our mother's living trust, who preceded our brother in death and is disputing his 1/3 of that trust. It is a simple trust to be divided equally between the surving children. What do you feel her standing will be with the courts?
2 Answers from Attorneys
Review of the will and the trust would be needed to give an informed answer to your question. However, in general, a contest of your brother's will by someone such as your sister will likely be unsuccessful, assuming that your brother was competent and the will is in proper form. And, your sister as trustee of your mother's trust cannot "contest" the terms of the trust as it conflicts with her duties as trustee. If she refuses to act in accordance with the terms of the trust she is subject to being removed as trustee and another trustee being appointed.
The answer to your question really depends upon the trust language. Sometimes the trust declaration has terms that requires the person survive distribution and sometimes it has language that the person just needs to survive the settlor. In your case, the latter seems to be true, while the former does not.
Also the validity of your brother's will is an issue. From what you wrote, the will seems to be valid and enforceable.
I suggest that you contact a knowledgeable attorney either in the county where your brother died, or in the county in which your sister is administering the trust.
Good luck.
Sincerely,
Kai H. Wessels, Esq.
(toll free 877-Wessels)
The above is for informational purposes only and not to be relied upon as legal advice.
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