Trusts and Estates
Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 3
- Cryptocurrencies and Trustees' Duty To Invest Prudently: Navigating Fiduciary Duties In the Age of Decentralization
- The Intersection of Death and Divorce: Where Probate and Family Law Collide
- Tips of the Trade - Senate Bill 2 Imposes Additional Recording Fees Statewide: What Practitioners Need To Know To Avoid a Showdown With the Recorder
- Back To the Future: How To Look At An Amendment Contest After Aviles V. Swearingen
BACK TO THE FUTURE: HOW TO LOOK AT AN AMENDMENT CONTEST AFTER AVILES V. SWEARINGEN
By Julie R. Woods, Esq.*
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.