Challenging a Trust or a Trust amendment is hard work, but it can be made even harder if you cling to irrelevant myths that will not help you win your case. We want to start by dispelling a few myths before we actually get into the nitty-gritty of how to contest trust or trust amendment.
The Number One Myth – My Parent Never Would Have Done This To Me
The number one thing we hear is “My Mom never would have done this to me.” “My Dad never would have done this to me.” Well, I believe you to be true when I hear that and when people tell me that. I’m sure that they’re being truthful. I’m sure that that’s their true belief but unfortunately, it doesn’t help us much when we go to court. Because one of the legal grounds is not what would your mother have done or would your mother have ever done this to you. That’s not a legal ground. That doesn’t mean that it’s entirely irrelevant. So, as you’re going through these different causes of action like undie influence, you’re going to see that there are opportunities for you to talk about what your mother would have done, what her true intent would be. It’s not entirely irrelevant but it’s also not entirely relevant and it certainly is not going to win the day in court.
It’s very important that you understand that going into your case is that your opinion of what your parent would or wouldn’t do really is a very small part of your case and it really doesn’t mean a whole lot at the outset. So, you’re going to have to find a lot more evidence than just that if you hope to win.
The Number Two Myth – A Judge Would Never Rule Against Me
The second thing we heard people say a lot is “Well, I couldn’t imagine a judge ruling against me. I feel like I’m so right and I know exactly how this should play out and I know the right result here. I couldn’t imagine a judge ever telling me I lose.”
When I hear people say that, what I think in my own head is well, you haven’t been in front of very many judges then because we have and we’ve been in front of dozens upon dozens of judges and they all have different opinions. Why? Because they’re all people. Your case is going to be heard in front of a judge because these are all bench trials and judges are people. People have different opinions, they’ve lived different lives, they’ve had different experiences. For that reason, you cannot expect that a judge is automatically going to side with you. They could just as easily side against you. Don’t think that you’re so convincing or your position is so right and that you’re going to automatically win. It’s not that easy. It’s easier to get that out of your head and concentrate instead on the evidence you need to gather to try to win your case.
The Number Three Myth – Decades-Old Family Rifts
The third thing we hear from people from time to time “well, my brother or sister is mad at me for something that happened 30 or 40 years ago or who knows how long ago. That may be true. There’s a lot of family animosity in these cases. There’s no doubt about that. People fight very hard in trust contest cases because there’s a lot of family history that’s being played out. It’s not just that law, the finances or the money. There are a lot of other emotional issues that are underlying case, no doubt. However, whatever happened 30 years ago isn’t going to be particularly relevant now. The judge isn’t going to want to hear about it. No judge is going to find it relevant. You have to focus on what was happening at the time the trust or trust amendment was signed. That’s what really matters. It’s that moment in time that we’re looking at in order to overturn the trust ir trust amendment. We have to show that there was undue influence on the day and the time when the document was signed. Same with lack of capacity, you have to show a lack of capacity on the day and the time when the document was signed. It’s very important that you focus on that and don’t get too sidetracked with things that happened decades ago that unfortunately, a judge is not going to find very useful or relevant.
The Number Four Myth – The Opposing Party Is a Bad Person
The next thing we see a lot of times is people will say “the judge will see that the other side are bad people and therefore the judge is not going to rule in their favor because I’m a good person.”
I have to tell you that unfortunately, I’ve talked to a lot of judges about this and so as my partner Steward Albertson, and what we’ve learned over time are judges are forced at times or they feel like they’re forced to side on behalf of bad people because the law, unfortunately, is on their side. Judges want to make the right ruling under the law and they try to do that in every case that they can. Sometimes that means giving the bad people to win because there’s not enough evidence for the good people. Of course, that also assumes that the judge is going to agree with you that you’re good and the other side is bad. What a lot of clients don’t realize is that as much as you think that what you’re saying makes sense and is the right result, the other side believes what they’re doing is just as right. That blows a lot of people’s minds because they think how could the other side think that they’re right when they’re so wrong. But believe me, they do. People are very good at convincing themselves that they’re doing the right thing even when it’s wrong. The other side thinks that they’re right, they’re acting like it’s right and there’s no guarantee that the judge is going to decide that you’re good and the other side is bad and make a ruling on that basis. It’s just not likely to happen.
The Number Five Myth – I Have a “Slam Dunk” Case
The next thing we hear from people is the law is black and white or I have a “slam dunk” case or this case is a sure thing. That is so far from the truth. The minute I hear somebody say “I’ve got a slam dunk case or this is a sure thing”, I know immediately that that person does not understand the law, they don’t understand lawsuits, they don’t understand how these cases tend to proceed. They literally are just fooling themselves if they think that they have a “slam dunk” case because there’s no such thing as “slam dunk” case. It simply doesn’t exist. The reason for that is that the law is not black and white. The law is a people’s business. You have to convince a person, the judge. You have to work with people who are witnesses and they might tell you one thing but then when you depose them and they’re in a deposition setting, they say something else. They may not remember at all. Documents may not exist that you thought did exist or vice versa, something exists that you didn’t realize was there. There are all sorts of twists and turns that come about in your case. So, no cases black and white, no cases of a slam dunk. The sooner you realize that and you get that out of your head the better. Once you understand that you have a challenge ahead of you, then you can work to surmount that challenge but if you bury your head in the sand and you say “this is a slam dunk case that’s a sure win” then I can promise you that you’re probably going to be a sure loser. Because you’re not facing reality, you’re not facing facts, you’re not facing what you actually have to do. So, no “slam dunk” case. Just get it out of your head but that’s okay. That’s why you hire lawyers, after all, to make your case better.
The Number Six Myth – All Lawyers Are The Same
That gets me to my last point. A lot of people think that all lawyers are the same. Well, I can promise you they’re not. Again this is a people business. The people matter. The people who are handling your case the way they’re handling your case, the way they’re working with you, all of that matters. That’s why you really need to find a lawyer, a law firm that works well with your style. Some people want a more aggressive approach, some people don’t. Some people want to be communicated consistently and constantly, other people only want to be bothered when there’s something important that they need to know about. Everybody’s a little different in their style and so you have to find a lawyer, a law firm, that meets that style so that you’ll have a successful working relationship. People definitely matter. The lawyer you choose and the way that they work your case is going to matter and it will actually affect what you ultimately get out of your case even if it’s a settlement. It’s going to affect what you ultimately get out of your case.
Those are some of the biggest myths that we come across and we just wanted to get these out of the way before we head down into the real meaty issues of the big challenge.
