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To Demurrer or Not to Demurrer…What the Heck Is a Demurrer Anyway? Using Motions in Your California Trust or Will Lawsuit

What do you call a court filing that usually is a complete waste of time, but occasionally kills a lawsuit against you at the very outset of the case? Answer: a confusing morass??? No, the correct answer is a demurrer.

Demurrers are funny things because they focus on a narrow issue of your lawsuit. In theory, every lawsuit that is filed must allege facts that support whatever legal claim is being made. For example, a breach of trust requires factual allegations that someone acting as a trustee violated one of the many fiduciary duties outlined in the probate code. Or a claim to overturn a Trust or Will based on lack of capacity requires factual allegations that the decedent did not have the required mental capacity at the time the Trust or Will was created. When the factual allegations in a complaint (or petition) do not make these basic allegations, then the complaint (or petition) is subject to challenge by way of a demurrer.

For purposes of considering the demurrer, the court is ONLY allowed to view the facts as laid out in the original complaint or petition. In other words, the court takes the facts pleaded in the complaint or petition as being true (but only for purposes of ruling on the demurrer). You are not allowed to point to any facts, evidence or documents outside the four-corners of the complaint (with some limited exceptions).

The real purpose of a demurrer is to make sure that each element of a legal claim is established through pleaded facts. If a complaint or petition does not at least accomplish that basic requirement, then there’s no reason for the court to take the matter forward.

The problem is that some basic facts can almost always be pleaded by a party. They many not be true facts, or provable facts, but as long as there are facts alleged that support each element of a legal claim, then the lawsuit can continue to the next stage and cannot be simply thrown out of court.

Most of the time even when a party “wins” a demurrer, the court grants the petitioner a chance to redo the pleading and try again. There are times, albeit very rare, when the court will refuse to allow a party to amend the petition. In those cases, the lawsuit goes no further.

Most demurrers do not end a lawsuit; but rather, inform the opposing party of any deficiencies in the complaint (or petition) and allows them a chance to fix those deficiencies. And a demurrer can only be brought before you file your answer or response to the complaint. Therefore, most demurrers are just expensive time-wasters. That does not automatically mean you should never file a demurrer; every case is different after all. But in those rare cases where a demurrer can end a lawsuit for good, it can be a great tool to use.