ASSESSING AND LITIGATING PRE-DEATH TRUST CONTESTS: PERILS, PITFALLS, AND STRATEGIES
By Howard L. Horwitz, Esq.,* David G. Knitter, Esq.,** and Mary K. deLeo, Esq.***
In probate litigation, contests to invalidate a trust instrument are common. Among the many issues facing a litigant is when to file a trust contest. File too soon, and the litigant’s suit is subject to demurrer for lack of standing. File too late, and the suit may be barred by either the statute of limitations or by the doctrine of laches.
Until the California Court of Appeal, Third District’s decision in the matter of Drake v. Pinkham1 ("Drake"), conventional wisdom dictated that a litigant seeking to contest a trust must wait until after the settlor’s death. Because a settlor could amend or revoke his or her trust, most practitioners assumed a trust contest brought before the settlor’s death would be premature and would fail from lack of standing.