Trusts and Estates

Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 3

BACK TO THE FUTURE: HOW TO LOOK AT AN AMENDMENT CONTEST AFTER AVILES V. SWEARINGEN

By Julie R. Woods, Esq.*

INTRODUCTION

Estate planners, to some extent, predict the future for their clients. Litigators, to some extent, reconstruct the past to best determine a settlor or testator’s intent. Therefore, trust and estate attorneys should develop a viewpoint that includes both foresight and hindsight.

No contest clauses are often in the forefront of an instrument’s analysis. In terrorem clauses are designed to incite fear and dissuade a beneficiary from challenging the validity of an instrument and unravelling the settlor’s or testator’s intent. A contestant may be undeterred from challenging the instrument, however, when seemingly warranted on the grounds of lack of capacity, undue influence, forgery, menace, or duress. A contestant also may challenge the instrument when the cost-benefit analysis is in the contestant’s favor, or when the no contest clause itself is ineffective.

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