YELLOW LIGHT: TRUSTEE MAY FOLLOW AUTHORIZATION TO DEFEND CONTESTED AMENDMENT UNTIL ENJOINED BY PROBATE JUDGE

By Jeffrey S. Galvin, Esq.^*

I. INTRODUCTION

A key issue in many California trust contests is whether the trustee can defend the action at the expense of the trust. As the holder of the checkbook, the trustee as a practical matter can hire and pay for counsel at the expense of the trust, subject only to downstream review by a probate judge. Hence, the trustee can (and often does) draw on the trust estate to fight off a contest initiated by a would-be beneficiary, to the advantage of those who stand to gain under the contested instrument.

The contestant, on the other hand, must fund the litigation out of personal resources. Prosecuting a contest is generally an uphill battle as a matter of the burden of proof.¹ Gathering and presenting evidence of mental incapacity and/or undue influence typically requires written discovery to the proponent, subpoenas for documents to the drafting attorney and medical providers, witness interviews, deposition testimony, and consultation with one or more experts. Preparing and trying a contest can cost hundreds of thousands of dollars.