THE JURY IS BACK: WHERE THERE’S A WILL, FINDING NEW WAYS

by Adam F. Streisand, Esq.^*

The appellate courts beseeched the Legislature to do away with juries in will contests. Time and again, the courts had to overturn jury verdicts that were based on what the jury thought was right, with no regard for the decedent’s last wishes. The Legislature heard the cry for help. By enacting Cal. Probate Code § 8252(b) in 1988, the Legislature eliminated jury trials in will contests once and for all. At least the Legislature thought it had. Increasingly, clever lawyers, through crafty pleading, are managing to empanel juries with the power to award punitive damages in cases that look and feel an awful lot like will contests. How do they do it? And in the absence of legislative relief, what can we do to keep will contests away from runaway juries?

I. THE LEGISLATURE ELIMINATED JURIES IN WILL CONTESTS

Cal. Probate Code § 8252(b) eliminated jury trials in will contests in order to address important policy concerns. The Law Revision Commission explains: