Legal Question in Wills and Trusts in California
Trusts that are in disagreement with wills
My father and step mother lived and died in California leaving a sizable estate. Both had individual wills simultaneously made that were exact mirror images of each other. Both wills state that upon the death of the last surviving spouse, the estate was to be divided into two equal shares. One share was to go to my step mother's child from a previous marriage. The other share was to be equally divided between my sister and me. CLAUSE 11 of the Wills states: ''Each devisee, legatee, or beneficiary under this Will, and each Heir-at-law of mine, who contests or seeks to secure revocation of probate of this Will, or attacks or seeks to impair or invalidate any of its provisions, or joins with anyone to do any such things, is hereinafter referred to as a contestant... and is wholly disinherited. My step mother died Feb. 20, 1984. Numerous trusts had been set up, several of which had my sister and I named as beneficiaries in accordance to the terms of the Wills. Upon inquiring about our inheritance, my sister and I learned that my step mother had gone in shortly before her death and rewrote all of the trusts and her Will, removing my sister and I as beneficiaries, except for a small token of $5000. each. Do we have any legal recourse?
5 Answers from Attorneys
Re: Trusts that are in disagreement with wills
You may or you may not. It all depends on the terms of the instruments and the mental status of the parties involved. As soon as possible, you should get all of the documents in front of a probate litigation attorney for review. Most probate and trust matters have highly accelerated statutes of limitation; thus you should act quickly.
Re: Trusts that are in disagreement with wills
If the date of the step-mother's death was 1984, as you say, then there is very little chance of successfully challenging distributions under the changed documents. Even a recent change will be a problem unless the wills were intended as part of a mutual contract. Attorneys admitted to practice in California (like me, just for instance) would be able to evaluate the case only after reviewing all the documents and facts. So it wouldn't be a free consultation at my office.
Re: Trusts that are in disagreement with wills
You MUST hire an attorney to determine the enforceability of the "no-contest" clause, I suspect it is unenforceable. I don't do probate, I just create trusts on the estate planning side. But you need to hire someone who does probate ASAP. Good luck.
Re: Trusts that are in disagreement with wills
What concerns me is the date your step-mother died (1984). If this is correct, there is little you can do. If the date is incorrect, it will depend on how the Wills were drawn up. It sounds as if they executed mutual wills. Mutual wills are separate wills with reciprocal provisions. They are reciprocal if they show on their faces that they are executed in consideration of each other. In some cases the law will provide a rememdy. An attorney needs to review the Wills, to look for language that indicates that the Wills were executed pusuant to a contract, or executed in consideration of one another. For example, does the Will state that neither testator will revoke his or her will either before or after the other testator. It would be in your best interest to bring the documents to a local attorney. Good luck.
Re: Trusts that are in disagreement with wills
Absolutely, she cannot change her father's well in any way once he passes away. Problem is that your question is a little ambiguous. If both had mirror wills leaving all of the assets to your step -- mother first, then the problem is she has total control over the assets since she becomes the "owner" of the assets. I must be able to read these instruments very carefully before I or any attorney can invite you. If properly written then you still may have rights. If you properly written you're rights may be gone. More importantly I would get hold of the attorney who represented your father in the preparation of that document to find out what he/she did in regard to the wishes of your father and stepmother. This is a very technical point and I've had to deal with it numbers of times over the years. most importantly white human waiting so long to do anything. Its 20 years, time alone works well against you in terms of your rights, the statute of limitations on any kind of client and you're apparently excepting $5000 many years ago. I have been practicing law in this legal area for over 30 years and understand your problem well. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000.
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