Q. My wife and I have 4 sons. Unfortunately, one of them is not deserving of an equal share of our estate when we pass, and we have shared that with him. He now threatens to challenge our trust after we die on the ground that we lacked capacity when we recently created it. We are both in our 80’s, but fully competent. Is there anything we can do now to ensure that our wishes, as expressed in our trust, are honored after we pass?

A. Yes. Here are three suggestions, and you can undertake one or all if you wish:

1) Arrange a Forensic Evaluation Of Your Capacity: Arrange for an evaluation of your capacity by a forensic psychologist or psychiatrist now, while you both are fully competent. The evaluator should be a professional who is well versed in the forensic aspects of evaluating capacity, and should be someone who will be able to testify, if necessary, down the road. You should arrange this through your attorney, who can assist in locating a suitable professional. It is likely that the interview of each of you would be recorded and preserved for possible future reference. The evaluator should inquire fully about your reasons for wanting to treat your one son differently, and would ultimately render an opinion in writing regarding your capacity, the basis for your decision, and other relevant factors. Try to select a professional younger than both of you, who is likely to be alive and available to testify when you have both passed on. In any event, at least the evaluator’s recorded interviews and psychological testing should be preserved for later access by another professional who could then testify.

2) Include a “No Contest” Clause in Your Trust: To make this effective, make sure to leave the one son enough to discourage a contest. If you leave him little or nothing, then he would have nothing to lose by initiating a contest. See this Article for more on this topic.

3) Initiate A Court Proceeding Now to Affirm the Validity of Your Trust: Perhaps the most effective approach would be to formally initiate a court Petition now, during your lifetimes, to confirm the validity of your trust by an Order of Court. You would be available to tell the court why you created your trust as you did. If successful, the resulting court order affirming your trust would then foreclose anyone from later on challenging it, provided that the would-be challenger(s) received notice of the court proceeding and an opportunity to challenge your trust. If any challenger fails to object, or if he objects but the judge rules against him, then he would thereafter be foreclosed from later challenging your trust, under a legal doctrine called “res judicata”, meaning that the matter had “previously been adjudicated” and is now foreclosed from challenge.

The proceeding would be brought under CA Probate Code § 17200 to “determine the existence of the trust”. The fact that there is legal authority to permit you to bring such a Petition during your lifetimes is a matter not well known to even many attorneys, as the common wisdom is that proceedings to challenge a trust can only be brought after the death of the Trustors who created it. Not so. In fact, in addition to the statutory authority, there are interpretive judicial opinions, which embrace the notion that proceedings to affirm the validity of a trust, or an amendment to trust, can be brought before a judge during the lifetime of the Trustor(s).

Of course, how you approach your concern is a matter that you should discuss with your attorney, as there are significant factors to take into account before going forward. For example, initiating a court proceeding during your lifetimes may exacerbate family disharmony, or precipitate unpleasant and expensive litigation. By the same token, even seeking a forensic evaluation of your capacity now might, itself, raise questions as to whether it was motivated by a concern about your very capacity to create the trust.

So, consider these matters carefully with your attorney before undertaking any of these strategies. But, at the same time, know that there are ways to protect your trust against a post-mortem contest.


References regarding the Court Proceeding: California Probate Code § 17200; Conservatorship of Irvine, 40 Cal. App. 4th 1334, 1342 (1995); Murphy v. Murphy, 164 Cal. App. 4th 376, 398-399 (2008).