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Not quite right: Attacking your Trust or Will lawsuits with a Demurrer

What if you could file a simple motion at the outset of a lawsuit and have a court decide the case in your favor? Sounds good to me. But ending a lawsuit quickly is not as easy as you may think.

In part, that’s because of our Constitutional Right to Due Process, which means each party has the right to discover and then present evidence in their favor at a trial on the case. The Court is typically not allowed to decide the truth of a matter until time of trial. That means a complaint filed with half-truths or lies is not judged as being false until a trial is conducted.

At times, however, a party can bring a motion called a demurrer if the initial petition fails to recite enough facts to establish the claims made. For example, in a breach of trust claim, a party must allege that the person being sued is a trustee and has acted in that capacity. Without that fact, no breach of trust claim can continue. It is irrelevant for purposes of considering a demurer whether the facts contained in the petition are true or not. The only issue is whether the recited facts are enough to support the claims.

Even where a demurrer is granted, courts often give the petitioner a chance to amend his or her pleadings to allege the necessary facts. That means demurrers can be an empty exercise because the opposing party may be able to fix the deficiency in the next draft of the petition.

There are times, however, where no amount of amending the petition will help. For example, where a party has blown the statute of limitations. In that case, the court may still give leave to amend, but it will likely do no good.

So why bring a demurrer? Anytime you have a petition that is defective, and cannot be easily amended to cure that defect, then a demurrer should be considered. This is especially true where a statute of limitations has been passed.

But where a defect in a petition can be easily amended, then a demurrer may not be worth the time or money to prepare and file with the court. In other words, it comes down to the strategy consideration of your case.