The Problem Child’s Problem: Can an estranged child contest a California Trust or Will?

In this video, partner Keith A. Davidson discusses the problems an estranged child may have in trying to contest a California Trust or Will.

The following is a transcript of this video:

In this video, I wanted to talk to you about can an estranged child, somebody who has had no relationship with a parent for many, many years; can they challenge a trust or will?
Well, for starters, I want to make it very clear that at least in California, a child does not have a right to inherit just by virtue of the fact that they were a child. So parents have the right to disinherit children at any time; provided that, it’s the parent’s wish to do so not somebody else’s wish that was forced upon them.

But can an estranged child come in and challenge a trust or will? Well, it all goes down to the circumstances around the creation of the trust or will? So was the trust or will created at a time when the parent was subject to undue influence, or lack of capacity, or was it created at a time when there were no problems, and, therefore, you’re probably not going to have legal grounds to challenge that trust or will.

Now, I will tell you that if you’re estranged from a parent for many, many years, trying to contest a trust or will becomes more difficult. Because when you’re contesting, you carry the burden of proof. You have to convince a judge to overturn that document and judges are people. And so you’re going to have some compelling story as to why what you want makes sense. And if you haven’t had a relationship with your parent, it kind of makes sense that maybe you would be disinherited, versus somebody who has had a very close relationship with their parent where it may not make sense that they would be disinherited.

So you have to think about these things going into a case. So if you’re estranged, that doesn’t mean right there that you can’t contest a trust or will, but it does mean that your job may become a little bit more difficult, your case may be harder right out of the gate, because you don’t have that compelling story behind your case.

So it’s something that you should consider and think about. I wouldn’t say that it stops you from contesting, but it certainly makes the case a lot harder.

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