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FIGHT BACK: Take Legal Action Regarding A Will or Trust
WILL AND TRUST LITIGATION
Will and trust litigation can regard the document itself – is it the product of undue influence, fraud, lack of testamentary capacity?
Trust or estate administration can also prompt litigation – is the trustee or executor failing to act? Delaying distributions? Living in trust or estate property rent-free or letting others living in trust or estate property rent-free or less than fair market value?
Some bases for litigation and to invalidate a questionable estate plan document:
UNDUE INFLUENCE
Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. Undue influence may be shown by direct evidence or indirectly by circumstantial evidence. The facts matter! In determining whether a will or trust was produced by undue influence, the vulnerability of the victim in considered, if the victim can drive, if the victim has cook, drive, get their own medicine, talk to people other than the undue influencer.
When proven, the effect is to invalidate the will or trust.
FRAUD
Statute and countless case law supports invalidation of a will or trust where fraud is present. One of the necessary elements is an intent to deceive the decedent or an intent to induce decedent to execute his will or trust. Here’s an example of fraud in the context of a trust or will: younger sister made continuing misrepresentations about older sister to her mother for the purpose of alienating older sister from mother and effecting older sister's disinheritance, which was motivated by younger sister's perception that older sister's family had received more gifts from father in the past.
The effect is to rescind, revoke, invalidate, void and otherwise set aside the will or trust.
LACK OF TESTAMENTARY CAPACITY
An individual must have testamentary capacity for a valid instrument. Per Probate Code 6100.5. When a testator is found to have lacked capacity at the time of signing the will or trust, the effect is to invalidate the will or trust.
TAKE ACTION!
To challenge a questionable will or trust, a lawsuit must be filed – it’s a necessary step toward invalidating the document. Don’t let someone else exploit your loved one’s legacy. Strict statutes govern the time when you can file. There are limitations. Don’t delay. Stand up, protect your loved one’s wishes, and claim what’s rightfully yours.
PARTITION ACTIONS - Forcing a Sale of Real Estate
Do you co-own a property and want to sell it but co-owner refuses? Is your co-owner demanding sale?
What is partition?
Any owner of real estate can force a sale of the property. An owner of a concurrent estate can commence and maintain a partition action. (Cal. Code Civ. Pro. §872.210 subd. b). Concurrent owners are two of more persons on deed to a property, such a joint tenants or tenants in common. It does not matter what percentage of the property is owned to force a sale; an owner of any percentage of a property can force a sale.
Partition by sale is usually more equitable and desired than partition in kind. Partition by sale is selling the property on the open market. Partition in kind is a physical division of a property. Partition by sale rather than physical division is favored where division of the land would substantially diminish value of each party's interest; courts consider whether a partition in kind would result in a co-tenant receiving a portion of the land which would be worth materially less than share of money which could be obtained through sale of the land as a whole. (Cal. Code Civ. Pro. §§872.810; 872.820); Butte Creek Island Ranch v. Crim., 136 Cal.App.3d 360 (1982)).
Important to include in any lawsuit for partition is an accounting cause of action. This cause of action will allow persons to be reimbursed for certain amounts spent towards the property. California Civil Code Section 2903 provides:
“Every person, having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the property, except in so far as he was bound to make such redemption for their benefit.” (Cal. Civ. Code § 2903). “The liability of cotenants, as between themselves, for the payment of liens against the common estate, is proportionate to their respective interests, and a cotenant relieving the common property from a lien or charge for the joint benefit of the tenants in common is entitled to an equitable lien by subrogation.” (Snider v. Basinger (1976) 61 Cal.App.3d 819, 823-824).
Partition actions may include a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035). “Credits include expenditures in excess of the co-tenant's fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.” (Id. at 1035-1036).
It is also possible to be reimbursed attorneys fees and costs for the partition action.
We routinely handle partition actions, and are experienced representing both plaintiffs and defendants. Ready to force a sale or respond to a partition action? Protect what is yours and call or email us today.
DAMAGE TO YOUR REAL ESTATE?
The 2025 Los Angeles fires are devastating. To all to lost anything in the recent fires including the Palisades, Easton and Hurst fires, we hope for your strength and resilience during this rough time. Damage to your property is overwhelming and it is difficult to manage repairs and insurance claims during the weight of tragedy. There are many initial simple steps you can take to help the claim and repairs process. The sooner you act, the better your results may be. For an insured property, we recommend beginning with the following five (5) actions as soon as possible.
First 5 Things To Do Following Damage To Your House
1. Obtain your Homeowners Insurance Policy.
2. Make a claim with your insurance company.
3. Take photos and videos of the damage (once safe to do so).
4. Track additional expenses for being out of your home and save all receipts, such as for food and essentials and note any Additional Living Expenses (“ALE”) such as increased mileage, temporary rent.
5. Consult with an attorney to assist with your claim. Call 949-357-0757 to speak with a California licensed attorney.
California Insurance Code §2077 provides minimum standards for fire insurance coverage. It requires coverage for fire losses "to the extent of the actual cash value of the property at the time of loss," up to policy limits. Per California law, the fair market value of the damaged property is the “actual cash value.” (Jefferson Ins. Co. v. Superior Court (7970) 3 Cal.3d 398, 402.) This is the bare minimum coverage which you should expect and demand from your carrier. If you are told you will receive anything less, please call for a free consultation. We have proven results of obtaining amounts far greater than the initial insurance payout.
