A Boogeyman in popular culture is an illusion to a mythical creature that frightens children into good behavior or just plain frightens children. A Boogeyman's description relies upon the child's own imagination. I can still recall that around my kindergarten years my imagined Bogeyman was a gorilla who alternately hid in my closet, under the bed or in the dining room.
As children we might have been told that if we didn't behave the Boogeyman would get us. While we mature we put the fears of the mythical Boogeyman behind us. That said there are parts of our culture and lives that retain a Boogeyman aura. No-Contest clauses in California Wills & Trusts have that characteristic. They are designed to deter trust or will challenges by enforcing a statutory disinheritance penalty on estate challengers. In so many words - "If you challenge this will or trust you will lose everything - or maybe you get $1." The Boogeyman is at work.
Now, let's talk about what this Boogeyman should not be protecting:
- A drug addled son unduly influencing his vulnerable mother to change her trust leaving everything to him.
- A caretaker controlling the necessities of life transporting an elderly adult to an attorney of the caretaker's choosing with a resulting revised will leaving the house to the caretaker and any Goodwill bags to the elder's four children.
- A long out-of-work daughter living with her Alzheimer's stricken mother who convinced her mother to change her trust to exclude her three other siblings from taking anything.
We challenge wills and trusts with regularity - most of the wills or trusts have "no contest" clauses. While I won't say that we cut through all of them like a hot knife through butter, I will say that we make certain that our client's challenges meet California's Probate Code probable cause standard. The statute provides "probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery."
The important qualifiers include the recognition that probable cause exists if a reasonable person would believe there is a reasonable likelihood of success after an opportunity for further investigation or discovery. In estate litigation, most facts are not known at the initiation of a will or trust contest. There are often telltale signs of financial elder abuse or undue influence that still require follow ups. Litigation is often the follow up.
I have seen too many times when a wrongdoer asserts the no-contest clause as almost a "get out of jail free" card. We just don't buy it. When there is estate wrongdoing we move forward - and we move forward in every expectation that the relief that we seek will be granted after an opportunity for further investigation or discovery. In short, estate wrongdoers should take little comfort when asserting the no-contest Boogeyman against abused trust beneficiaries and estate heirs. So if someone's raising the Boogeyman against you, call us at Hackard Law - we're not afraid of standing up for our clients. You can reach us at 916-313-3030.