Don’t Delay Contesting a Will or Trust

“When someone seeks to contest years after the death of a loved one, their chances of success are generally bleak. Witnesses forget things or die or documents become harder to obtain and more difficult to litigate,” says Joshua D. Taylor, a Partner at Keystone who supervised the case. “The quicker you come forward with claims, the better, especially if you’re talking about litigation where you want to undo a transaction or documents, or raise capacity issues,” he says.

Keystone’s client had been searching for information about his half-brother’s estate for years following his half-brother’s death. When his search turned up no clear answers, he came to Keystone for help. Despite having been the decedent’s closest remaining heir, the client had no information about the decedent’s estate or trust. This is because the decedent’s former caregiver—who, in an unusual twist, had also been the decedent’s financial adviser—refused to provide the client with copies of the decedent’s estate planning documents.


Keystone’s estate and trust attorneys launched an investigation into the case and discovered that the decedent’s caregiver had used a power of attorney to transfer one of his most valuable assets—his home—into a trust under which she was the sole beneficiary and trustee. She also drafted a will for the decedent (in her own handwriting), which left his entire remaining estate to her and her two sons. The documents were signed with either the letter “X” where the decedent was supposed to sign or with nothing at all. Based on the observations of Keystone’s client and the decedent’s medical records, the decedent had clearly been unable to make important financial decisions at the time the estate documents were supposedly signed because he had been in a nonverbal, near-vegetative state. Furthermore, to duly execute a will, two witnesses are generally required. 

The circumstances surrounding the creation and execution of the decedent’s estate plan were suspicious to say the least, so Keystone advised the client to challenge the validity of the trust through a trust contest. While the grounds for this trust contest were familiar—the decedent had lacked the capacity to execute a trust and had been subjected to undue influence—what made this case unique was the overwhelming weight of the evidence in support of these claims. 

What Caused the Decedent to Leave His Caregiver Everything He Owned?

A trust is established to protect and hold a settlor’s assets for the benefit of beneficiaries. When the settlor dies, trust assets will be distributed to the settlor’s intended beneficiaries in accordance with the provisions of the trust. Unlike wills, trusts do not pass through probate (a court-supervised process), and as a result, can offer more privacy.

A decade before he passed away, the decedent had created multiple annuities with the assistance of a financial adviser. But the advisor’s role would soon expand far beyond its original scope. 

The decedent had three siblings: a brother, sister, and half-brother (Keystone’s client). All but the half-brother were deceased at the time of the decedent’s death, making the half-brother the decedent’s closest living heir. Despite living two states apart, the two men remained close and regularly kept in touch. The decedent had been a proud man who had accumulated a sizable estate during his long life. And he had purposefully never intended to execute any estate planning documents; rather, he had desired for his assets to pass to his half-brother by way of intestate succession

The decedent’s health ultimately began to fail so he solicited the help of his financial adviser to come to his house to assist with his finances and arrange for daily care, including the hiring and firing of additional caregivers. During this time, this financial adviser herself began to assume the role of caregiver, and it soon became evident that she was taking increasing control over the decedent’s life.

As the decedent’s health worsened and he fell into a near-vegetative state, his new caregiver saw an opportunity to swoop in and unduly influence him into signing away—not with his signature, but with the letter “X”—all of the assets he accumulated over the course of his lifetime to her and her two sons. Hours later, the caregiver rushed the decedent to the hospital where he was treated and re-diagnosed with advanced, end-stage dementia. He would require palliative, end-of-life care.  

The caregiver then went even further, writing the decedent’s will, which she claimed he had dictated to her, in her own handwriting. The purported will had not been duly executed, nor did it contain a date, attesting witnesses, or legible signature at the bottom. 

While California does allow holographic wills—wills that are handwritten by the testator (the creator of the will)—they must meet certain conditions if they are to be recognized as valid. These conditions include the material terms of the will being written in the testator’s handwriting and at a time when the testator had sufficient capacity to make a will, and the will being signed by the testator. Considering this will was not in the testator’s handwriting and purportedly signed at a time when the testator was not competent (and with an illegible signature), Keystone argued that it was not a valid holographic will. 

Additionally, medical records and testimony from hospital personnel who treated the decedent around the time the estate planning documents had been signed confirmed that the decedent had not been of sound mind. This was further corroborated by the testimony of the decedent’s friends.

When the decedent died shortly thereafter, Keystone’s client reached out to the caregiver to request copies of his half-brother’s estate planning documents (which he was entitled to receive as an heir), but she refused to provide the documents until the client took legal action several years later. 

“It’s not uncommon in these cases to have somebody who is opportunistic to see vulnerability in someone else and to suddenly become more involved in their personal life in order to exert undue influence. That was certainly the case here,” Taylor says. “Once the decedent became more vulnerable to undue influence, the financial planner assumed the role of caregiver and in so doing, inserted herself much more into his life.” 

Lack of Capacity and Undue Influence

Will and trust contests often involve claims that the subject documents should be invalidated on account of lack of capacity and/or undue influence. These two grounds are closely intertwined, in that a lack of capacity leaves a person more vulnerable to undue influence and other forms of financial exploitation.

When a will or trust is being contested on account of lack of capacity, it is being suggested that the testator or the settlor (the creator of the trust), respectively, lacked the requisite mental capacity—as determined by the law—to execute that particular estate planning document. 

California law presumes that a person has the ability to make sound decisions and sign documents, such as contracts, wills, trusts, and powers of attorney. Thus, the burden of proof to show incapacity falls on the person contesting the will or trust. Since the court considers trusts to be more complex than wills, it is generally easier to prove that a decedent lacked the capacity to execute a trust than a will.

Medical documentation and testimony from the decedent’s physicians can be provided to the court to demonstrate that the testator was cognitively impaired at the time the estate documents were signed. And the party contesting the validity of the estate planning document will usually retain a medical expert (typically a geriatric psychiatrist) to review the decedent’s medical records and opine as to the decedent’s level of capacity as of the date of execution.

When undue influence is the basis for a will or trust contest, it is being suggested that the testator or settlor, respectively, was subject to the excessive persuasion of another person, which resulted in the testator or settlor drastically changing their estate plan in a way that was not consistent with their true intent. 

To confirm that undue influence played a role in the creation or execution of a will or trust, the court will take into account whether the testator was vulnerable to undue influence, the apparent authority of the influencer, the actions taken by the influencer to persuade the testator, and the equity of the result. In other words, did the bad actor replace the intentions of the testator with their own intentions? 

There are also certain situations whereby a court will apply a legal presumption of undue influence (assuming that certain criteria are met) such that the burden of proof switches to the alleged influencer to prove that there was no undue influence. One such situation is when the non-relative drafter of a decedent’s estate plan is also an estate beneficiary or trust beneficiary under that estate plan—as was the case here with the handwritten will. 

Complete lack of capacity does not have to be proven in order to successfully prove undue influence, but it usually needs to be shown that the decedent did not have the mental competence necessary to adequately protect themselves against undue influence. 

In this case, there was plenty of evidence to show the decedent’s cognitive abilities had been impaired to the point he was both susceptible to the undue influence of his opportunistic financial adviser-turned-caregiver, and that he was incapacitated outright.


Ultimately, Keystone reached a favorable settlement for its client. Not only did he receive the majority of the decedent’s liquid assets, but he also received an additional settlement sum that was paid by the opposing party directly.

The Takeaway

This case was remarkable in that the decedent’s caregiver had also previously acted as his financial adviser. As such, she was fully aware of his financial situation and preyed on his vulnerabilities in order to steal his hard-earned fortune for herself. The worst part? She almost got away with it. Luckily, despite the caregiver’s initial refusal to cooperate with Keystone’s client, the client did not give up, seeking the help of Keystone’s probate attorneys to secure the inheritance that was rightfully his.

It’s not always easy to contest a will or trust and win, but a person’s chances increase significantly if they have a skilled legal team representing them. Keystone’s client, for example, was fortunate that his case was able to be resolved favorably, even though he waited years after his half-brother’s death to bring his claim. Ideally, the client would have hired a probate firm immediately following the decedent’s death, as they could have helped him obtain copies of the decedent’s estate plan from the caregiver early in the process. As a general rule, the earlier you involve a lawyer in estate and trust matters, the better. Once trust or estate administration starts, it becomes significantly more difficult (and potentially impossible) to challenge the validity of a will or trust. Even if you are unsure about whether a decedent’s will or trust is problematic, it is never a bad idea to have a qualified lawyer review it.

“What this case shows is that you have to be careful with whom you trust with your financial secrets,” Taylor says. “It’s very important to have trustworthy people involved in administering your estate and in providing a level of oversight.”


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