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Pre-Death Contest

There was an interesting Appellate Court decision published recently regarding California probate litigation, Drake v. Pinkham.  In that case, there was litigation concerning the mother’s trust during the mother’s lifetime.  After the mother died, one daughter tried to contest the validity of the last two amendments to the mother’s trust.  The court held that she was aware of those amendments during her mother’s life and should have contested them during her mother’s life.  Therefore, they did not allow her to contest the two amendments after her mother’s death.

I disagree with the analysis in this decision.  It may go up to the California Supreme Court for review.  But, whether or not I agree with it, it is instructive because it points out the problems involved with filing estate litigation while the parent is still alive.

In the Pinkham case, in litigation during mother’s life, the daughter alleged that the mother was incompetent, and it was a battle over who should be the successor trustee.

Mother filed a response, and later signed a settlement agreement, so mother was apparently competent.

During the pre-death litigation, the existence of the two trust amendments was revealed.  Those amendments omitted the contesting daughter from any inheritance.

The pre-death litigation and settlement did not deal with the validity of those two amendments, but implicitly established that mother was competent, as mother remained the trustee pursuant to the settlement agreement.

In the Appellate Court decision, the court held that the since the contesting daughter had alleged that mother was incompetent in the pre-death litigation, that allegedly gave the daughter standing to contest the two amendments during mother’s life.

I disagree with this analysis for three reasons.

First, a pre-death contest as to the ultimate disposition of the trust estate would be premature, because no one knows whether there will be any money left at mother’s death.  It could all be used for her care, or she could give it away.

Second, just because the daughter alleged that mother was incompetent does not mean that mother was incompetent, as shown by the response filed by the mother and the settlement agreement signed by the mother.

Also, the daughter’s post-death contest alleged undue influence.  I do not see why that undue influence cause of action was be barred by the pre- death litigation, which did not allege undue influence.

Nevertheless, think twice about suing your mother.

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