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The Court’s Wield the Power of the King: Using Equity in Trust and Will Lawsuits

Have you ever heard of law and equity? Nearly everyone has heard of law, in fact many people believe the law is a set thing that is easily applied with clear-cut rules (not true in most cases by the way). Equity, on the other hand, is a lesser-known concept, which is ironic since a huge part of our legal system comes from equitable principles. In fact, our entire nation was founded on equitable principles—that all men are created equal with certain inalienable rights; that among these rights are the right to life, liberty, and the pursuit of happiness (you know the drill).

There was a time, way back in the days of Merry Old England, when there were two sets of court systems—courts of law and courts of equity. The problem with the rule of law is that it can have harsh results at times. When you set legal rules and expect everyone to follow them, it works for a majority of cases—but not for every case. Thus, when a party received a harsh result under the law, that party could appeal to the courts of equity and seek a “fair” result. At first, equity was sought out by petitioning the King, but over time the King delegated that power to the Chancery, which became the Court of Equity.

In the American legal system, our courts are both courts of law and courts of equity, but the court does not have free reign to ignore the rule of law and impose equity whenever is desires to do so. There are rules that dictate when equity can be used and when it cannot be used.

Probate court is said to be a court of equity. That means that the judge in your probate court matter has a great deal of discretion. He or she can make decisions not just with the legal principles in mind, but with the underlying fairness in mind as well. You can see signs of equity scattered throughout the California Probate Code. For example, when you are challenging the actions of a Trustee and asking the court to personally surcharge the Trustee for wrongdoing, the Court can decide to issue a surcharge. But (and this is a big but) Probate Code Seciton 16441(b) allows the court to excuse the Trustee from being held liable if the court determines it would be equitable to do so under the circumstances. Furthermore, Probate Code section 16421 says that the remedies of a beneficiary as against a Trustee are exclusively in equity.

These are just two examples. There are many instances throughout the Probate Code where equity reigns supreme over the legal rules. What does this mean to your case? It means you might have the Trustee on the hook for damages as far as the legal rules go, but there’s a big out for the Trustee if he or she can convince the court that being held liable is not fair. Yikes!! That’s a big hole in any case.

You better mind your equities! Trust and Will cases are won, and lost, based on the backstory. I don’t mean the story from over twenty years ago, I mean the facts and circumstances that lead up to whatever action you are contesting. If you are trying to overturn a Trust or Will, then you have to weave together the facts that pre-dated the bad Trust or Will being signed. Was there a back actor that interfered, did the estate plan change drastically because of the bad document, did the decedent suffer from dementia and seemed confused? Whatever the circumstances, they must be developed and (most important) supported by competent witnesses and other evidence. You may have heard of someone saying something helpful, but unless they will testify in court it means very little to your case.

Parties who focus only on the legal issues involved in their case are potentially hurting themselves, and missing a big opportunity to strengthen their case. Remember that the Court has wide discretion in probate court cases, so you must use equity to your advantage. It’s all about the backstory.