Every Trust and Will contest requires sufficient evidence to present in court. And if you are the contesting party, then it is your burden to meet the burden of proof required by California law. That means you have the burden to go out and find evidence to support your claims.
There are three sources of documents that you will want to obtain as quickly as possible. Typically, these documents are secured by having your lawyer serve subpoenas on the parties who have the evidence.
Estate Planning Documents
The first source of documents is the estate planning file held by the estate planning attorney, if there was one. Not every estate plan is prepared by an attorney, but for those plans that are attorney-prepared, you have to obtain the estate planning file as soon as possible. Once your lawsuit is filed, you can serve a subpoena on the attorney or law firm that drafted the estate planning documents you are challenging.
The reason to subpoena the estate planning file is to see what information the estate planning attorney has to support the Trust or Will documents that were drafted. Are there any notes, documents from the client or documents from others? This is all valuable information that you must have.
If you serve a subpoena on the estate planning attorney, and they refuse or fail to comply, then you must file a motion to compel with the court. Under the motion to compel, the court is asked to issue an order to the estate planning attorney to hand over all documents. Courts will typically grant this type of motion. Whatever it takes, you must do everything you can to obtain the estate planning file.
The second source of documents are medical records. If you file a Trust or Will contest based on lack of capacity or undue influence, then you need medical evidence to support your claims. For medical records, you issue subpoenas to every healthcare provider who interacted with the decedent. In particular, you need medical records around the time the Trust or Will documents were signed.
The third source of documents are financial records. In many cases, you will find that the wrongdoer was taking advantage of the decedent’s financial accounts prior to death. And this will also help establish financial elder abuse and undue influence claims. For these reasons, you must obtain all financial records. This includes records from banks, brokerage firms, life insurance, retirement accounts, anything that could lead to discovery of financial wrongdoing.
Since you have the burden of proof in any Trust or Will contest litigation, you must obtain these three essential sources of documents.