Will and Trust Disputes Glossary

  • ADMINISTRATOR: Someone appointed by the Court to manage the probate of an estate that does not have a Will.
  • ASSIGNEE OR ESTATE OF PROPER CONTESTANT: The right to contest a will survives to the contestant's estate; similarly, it is assignable. Hence, a proper contestant's assignee or a deceased contestant's estate representative has standing to pursue the will contest in the original (assigning or deceased) contestant's place.
  • BENEFICIARY: Someone who is slated to receive property from a will or trust.
  • BENEFICIARIES UNDER A EARLIER WILL: The beneficiaries under an earlier will, whose interests are impaired or defeated by a later will offered for probate, have standing to contest the later will.
  • BENEFICIARIES UNDER A LATER WILL: Conversely, if the interest of a beneficiary under a later will may be impaired or defeated by probate of an earlier will, the beneficiary has standing to contest probate of the earlier will.
  • CREDITORS OF HEIRS: An heir's creditors may have an 'interest' in the estate if decedent's will disinherits the debtor-heir. However, such creditors have standing to file a will or trust contest only if they have perfected a judgment lien at the time the property would pass to the heir if the will were set aside. Conversely, an heir's general unsecured creditors (no judgment lien) apparently have no standing to file a will contest.
  • CUSTODIAN OF THE WILL: The individual who holds possession of a will at the time someone dies.
  • DEATH-BED WILL: A will created very close to the time of death of the testator.  Death Bed Wills are more likely to be challenged, due to the likelihood that a person who is near death is not in possession of all of his or her faculties.
  • DECEDENT: Used to refer to a dead person.
  • DEED CONTEST: A Deed Contest is a lawsuit or other legal proceeding whereby the validity of a transfer of real property by deed is contested, often on the basis that it was procured by fraud or undue influence.
  • 'DIRECT CONTEST': A 'direct contest' is a pleading in a court proceeding alleging the invalidity of an instrument (or one or more of its terms) based on any of the following grounds:
    •  Revocation
    • Lack of Capacity
    • Fraud
    • Misrepresentation
    • Menace
    • Duress
    • Undue Influence
    • Mistake
    • Lack of Due Execution
    • Forgery
  • DUE EXECUTION: A will must be signed under particular conditions, and if it is not, it fails.  This is the so called "Due Execution" Rule.  The basic formalities for a witnessed will are due execution by the decedent and attestation by two disinterested witnesses. [Probate Code § 6110].  The basic formalities for a holographic (handwritten by the testator) will are signature by the decedent and material provisions in the decedent's handwriting. [Probate Code § 6111].
  • DURESS: Duress consists in [Civil Code § 1569]:
    (1) unlawful confinement of the person of a party, or of the party's spouse, or of an ancestor, descendant, or adopted child of such party or spouse;
    (2) unlawful detention of the property of such person; or
    (3) confinement of such person lawful in form, but fraudulently obtained or fraudulently made unjustly harassing or oppressive.
    A will or trust procured by Duress is invalid.
  • EXECUTOR UNDER EARLIER WILL ADMITTED TO PROBATE: The executor appointed under a will, duly admitted to probate, has an affirmative obligation to defend that document against subsequent contests.
  • FORENSIC GENEALOGISTS: Professionals who seek out and identify people who may be beneficiaries of a will or estate, whose identities are not know at the time of death.
  • HEIR: Someone who may inherit either under a will, or under the law.  There are a number different categories of heirs.  A “missing heir” (there are several varieties of missing heirs) is someone who will not receive an inheritance, unless action is taken to prove that they are the one who is entitled to receive an inheritance.  An “unknown heir” (there are several varieties of unknown heirs), is someone who may exist as a next-of-kin and can inherit, but as to whom there is uncertainty as to whether or not they really exist.  “Heirs-at-law” are relatives of the person who died who are entitled to receive under the laws of succession.  An “heirship order” is a court order identifying who are the relatives of the decedent who are entitled to receive a part of the estate.  The order also states their shares. 
  • INHERIT: This is to obtain property formerly belonging to someone who has died, as a result of a will, a trust, or the law of succession.
  • INHERITANCE: This is the property that is obtained, which formerly belonged to someone who has died, as a result of a will, a trust, or the law of succession.
  • INTESTATE: To die without a Will.
  • INTESTATE SUCCESSION: The rule or process by which people can receive the property of someone who has died as a result of a family relationship.
  • LEGATEE or DEVISEES: A person who is identified in a Will as being entitled to receive something.
  • MENACE: Menace consists of a threat of duress, of unlawful and violent injury to a person or the person's property, or of injury to a person's character. [Civil. Code § 1570].
    A will or trust procured by Menace is invalid.
  • NO CONTEST CLAUSE: A No Contest Clause is a provision of a will or trust that provides, that any person who contests or attacks the will or trust or any of its provisions takes nothing under the instrument or takes a reduced share.
  • PERSONAL EFFECTS: Items of personal property of the decedent, such as watches, rings, heirlooms, or pictures, that may have only sentimental value.
  • PERSONAL REPRESENTATIVE: Some who is in charge of overseeing the distribution of an estate.
  • POWER-OF-ATTORNEY CONTEST: A Power-of-Attorney Contest is a lawsuit or other legal proceeding whereby the validity of a Power-of-Attorney is contested, often on the basis that it was procured by fraud or undue influence.
  • PROBATE: The legal proceeding by which an estate of a deceased person is settled and distributed.
  • PRETERMITTED HEIRS: Decedent's children, spouse, and registered domestic partner, although omitted from the will (or other 'testamentary instrument'), may have claims to a 'statutory share' of the estate as 'pretermitted heirs.'
  • PROPOSED EXECUTOR UNDER WILL OFFERED FOR PROBATE: A person designated by decedent to be executor has no 'duty' to defend a contest before admission of the will to probate and his or her appointment as executor.
  • REVOCATION: Revocation of a will or trust takes place when there is a subsequent instrument revoking the prior will or trust - or part of it - expressly or by inconsistency, or when the testator takes action to destroy, mutilate, or cancel the will or trust, with the intent to revoke. [Probate Code § 6120].  A will that has been revoked will not be admitted to probate. [In re Benson's Estate (1944) 62 Cal.App.2d 866].  A revoked trust is invalid.
  • SAFE HARBOR RULE: The Safe Harbor Rule is a law that says that one who doubts the validity of a will or trust may ask the court to given an opinion on whether or not a particular line of attack on the will or trust will be deemed a "contest" when the will or trust has a no contest clause  This rule exists so as to allow heirs who doubt the validity of a will or trust a way to obtain an opinion from the Court, before chancing what might result in a loss of all benefits under the will or trust.
  • SHARE: How much of the estate of a deceased person a beneficiary is entitled to take.  Some beneficiaries may receive more than one share, and others, only a fraction of a share. 
  • SHARES BY REPRESENTATION: The manner in which a share which would otherwise go to a particular beneficiary is divided and given in equal amounts to people who stand in the place of the beneficiary, who has died.  For example, if a father with two sons is entitled to take one share, but has died, his sons would receive one half share each.
  • SIBLING: Brother, sister.
  • TESTATE: Referring to a situation in which some has died and left a will.
  • TRUST: A legal instrument whereby a person acts as a trustee, so as to hold title to property of another person, the trustor, for the benefit of a third person, the beneficiary.  It is possible, at least while they are all alive, for the trustor (also known as the settlor), to be the same person as the trustee and the beneficiary.  Upon the death of the trustor, however, someone specified in the trust document must assume the role of trustee.

  • TRUST CONTEST: A Trust Contest is a lawsuit or other legal proceeding whereby the validity of a trust is cast into doubt by the Plaintiff, and defended by the Trustee or the Beneficiaries of the Trust.

  • UNDUE PROFIT: Undue profit refers to something unwarranted, excessive, inappropriate, unjustifiable or improper. The concept consists of both quantitative and qualitative aspects allowing the trier of fact to evaluate the relationship between the decedent on the one hand and the beneficiary and others on the other hand to determine whether the beneficiary is the more obvious object of the decedent's testamentary disposition.  [Estate of Sarabia (1990) 221 Cal.App.3d 599].
  • WILL: A legal instrument that specifies how someone’s property will be distributed upon their death.
  • WILL CONTEST: A Will Contest is a type of Court legal action designed to invalidate all or part of a Will. Will contents often involve the allegation that the person who made the will, often termed the decedent or Testator, was senile, had delusions, or was of unsound mind at the time the documents were created, or was subjected to fraud, coercion or undue influence during its creation and implementation, or that there are ambiguities in the document, or the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

    If the Will Contest is successful, the Court can rule that all or part of the Will is invalid and can distribute property owned by the Testator as if the Will did not exist, or use the last previous Will, depending on the specific facts and circumstances.