Legal Question in Wills and Trusts in California
Dad left estate to my son instead of me the only child
My dad met me only 3 times. First time was when I reached 18. Last time I saw him my son was 3 months old. When my dad died June 1998 he left my son more than half of his estate (portion was left to charity and an ex girlfriend).
My question is, can I contest the provisions or the will itself? My father did not know me and according to the information I have received from the executor and the trustee he seemed to believe (even though he had not spoken to me for more than 10 years) I was not worthy due to a drug problem and moving all over the United States. This is not true, the executor and the trustee agree that my dad made a huge mistake due to the fact that he was completely wrong about me. I have frequent contact with executor and trustee so they know me pretty well by now. I am an only child is there any way I can re-structure my dad's will and trust?
2 Answers from Attorneys
Re: Dad left estate to my son instead of me the only child
Wills and/or trusts can be contested on the basis of "mistake," but in this case the time for contesting may have passed, as the fairly short time limits begin to run from the time of probate administration or trust administration.
Another hurdle is that if the will or trust is contested successfully, then any previous will or trust would still stand, and you may or may not be a beneficiary of one of those.
Generally, the statutes of limitation for contesting a will are anytime before it's probated, or four months from the time the will is admitted to probate in the court. For a trust, the rule is as follows (this was taken directly from the "Notification of Trustee" we send out in trust administrations:
YOU MAY NOT BRING AN ACTION TO CONTEST THE TRUST MORE THAN 120 DAYS FROM THE DATE THIS NOTIFICATION IS SERVED ON YOU OR 60 DAYS FROM THE DATE ON WHICH A COPY OF THE TERMS OF THE TRUST IS MAILED OR PERSONALLY DELIVERED TO YOU IN RESPONSE TO YOUR REQUEST DURING THE 120-DAY PERIOD, WHICHEVER IS LATER.
Re: Dad left estate to my son instead of me the only child
Your dad's situation does not seem to meet the definition of fraud, duress, undue influence, mistake, etc., to allow for a contest. I do not believe you would be able to bring an action under the circumstances which you described.
Mina Sirkin
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