Trusts and Estates

Ca. Trs. & Estates Quarterly 2022, Volume 28, Issue 3

MCLE SELF-STUDY ARTICLE EXTRINSIC FRAUD: WILL THE REAL SLIM FRAUDSTER PLEASE STAND UP?

Written by Ellen McKissock, Esq. and Allonn E. Levy, Esq.*

I. SETTING THE STAGE

Notwithstanding Mr. Marshall’s1 passionate calls for transparency, determining who the real "slim shady"2 is in a court of law can be challenging. That challenge becomes exceptionally important in probate cases, because the legislature has determined that orders for probate become final in a very short period of time.3 It is a reality that is ripe for mischief. After all, probate orders can forever include or exclude family members and decide the fate of millions of dollars in property and assets.

Understandably then, both the Probate Code and common law have ameliorated the otherwise harsh result of finality by recognizing the equitable powers of courts to set aside final orders of probate on the basis of extrinsic fraud. The concept is a simple one—if a court determines that fraud external to the proceedings themselves has been practiced, it may elect to void an otherwise final order, restoring justice.

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