The terms “contested matters” and “litigation” are often used interchangeably. Both refer to situations that may require court action to resolve a dispute or fix a problem. Some contested matters do not involve animosity between the parties, while others definitely do. If the matter surfaces because of a person’s death or mental incapacity, then any necessary court proceeding will usually be filed in a court that has “probate jurisdiction.” Many urban countries have specialized courts to handle decedents’ estates and mentally incapacitated persons. In other communities, these matters may be heard in a court that handles a number of different matters, including probate matters. Most of the matters handled by probate courts, such as admitting wills to probate and appointing executors, are routine and not contested. Routine probate matters can be handled very efficiently.

“Contested matters” handled by probate courts (aka “probate court litigation”) is a broad term that includes a variety of situations, including, but not limited to:

• Will contests (a challenge to the validity of a will);
• Will and trust construction suites (a request that the court make a determination regarding the legal meaning or effect of particular wording used in a will or trust);
• Guardianship contests (a fight over (1) whether a guardian should be appointed for a particular individual who allegedly who allegedly lost his or her mental capacity and did not do any advance planning, such as executing powers of attorney), and (2) if so, who should be appointed as the guardian to make medical decisions and handle financial matters for that mentally incapacitated person);
• Trust modification and trust reformation suits (a proceeding that requests the court to change or “fix” the terms of a trust because something is wrong with the way the trust is worded;
• Trust termination suits (a legal action brought to terminate a trust because the purpose of the trust has been fulfilled or can no longer be fulfilled); and
• Breach of fiduciary duty actions (suits by beneficiaries against an executor, trustee, guardian, or agent alleging that the fiduciary failed to act in accordance with the law and/or the instrument appointing her and thereby caused damage to the beneficiaries).

Multiple Marriages
Besides sibling rivalry, another high-risk factor for probate litigation is the so-called “second marriage” situation. Many people marry for a second (or even third or fourth) time without signing a premarital agreement (pre-nup) before the wedding. Many people, including the media, still mistakenly believe that the sole purpose of a pre-nup is to specify how their assets will be divided on divorce. Although such matters can be addressed in a pre-nup, estate planning lawyers are more concerned with the “messy issues” that develop on death (they have an optimistic attitude that their clients’ marriages will work out; they have a pessimistic attitude when it comes to death, however—all of their clients will die someday). The pre-nup is one of the best ways to avoid probate litigation on death. It can also avoid a very expensive “forensic accounting” on the death of the first spouse. Many people mistakenly believe they own certain assets as their separate property (perhaps simply because the asset was in existence before the marriage and/or is titled solely in their name) when, in fact, their property may have become community or marital property, in whole or in part, during the marriage. It is better for living persons to create the necessary documentation regarding the ownership of their assets, even if it involves a pre- or post marital agreement, than to have family members fight over these matters on the death of their spouse or parent. Not to be too harsh, but it appears irresponsible (and, perhaps, also “penny wise and dollar foolish”) for persons who own any significant assets to enter into a second marriage without a pre-nup. Even if the spouses in a second marriage are themselves happy to treat all assets on hand on the death of the first spouse as joint or community property, unless the proper legal documentation is in place, there is nothing to prevent one or more children of the deceased spouse from claiming otherwise after the death of their parent. This is the classic probate court litigation case: children of the first marriage versus the spouse of the second marriage.

Keep an eye out for the second part of our series about probate litigation, and all that it entails! If you have any questions regarding probate litigation, contact France Law Firm today!