Articles Posted in Discovery

A typical case will involve a family member contacting me to complain about the dispositions in a will or trust of a deceased relative, with allegations that another family member or a caregiver “got” to the deceased relative to unduly benefit themselves at the expense of the other family members.

To properly analyze the case, I obtain copies of all prior testamentary documents (to determine if the terms are at variance with the current documents, and how great a variance there is).

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There are times when a will is challenged in California. There are many reason why this happens and the law sets forth the procedures to follow in making a challenge. Some reasons a will may be challenged include:

The will is fraudulent.

The will wasn’t properly executed.

Recall that my client’s half-sister now claims that they are not related … and counsel and I agreed to use a DNA laboratory to determine the likelihood of relationship. Problem: the presumed natural father is dead and was cremated … where does my client get a sample of his DNA?

Like most everywhere that I had ever heard of, a death certificate is issued in California for every person that dies. The death certificate is signed by a treating physician, if the person had one before dying. In this case, the natural father died of lung cancer. I had a death certificate, therefore I could track down the doctor. Once I located him, I served him with a subpoena (pursuant to the discovery available to me in litigation California Code of Civil Procedure §2020.410) to produce any DNA material that he might have from the natural father. I also served a notice to produce (California Code of Civil Procedure §2031.010) DNA material on my client’s half-sister, thinking that perhaps there was a comb with hairs on it.

No luck… neither witness nor party had any DNA. I kept looking. I discovered that the natural father had received some treatments at Cedar-Sinai Medical Center in Los Angeles. After serving a subpoena on the hospital’s pathology lab, they acknowledged having biopsy tissue that could be used for DNA sampling.

The trust accounting had been filed with the Superior Court of Los Angeles County, Central Judicial District, but I had many questions concerning the entries on the accounting. What to do?

Under California law, all of the common discovery tools available in civil litigation (depositions, interrogatories, request for production of documents) are available in litigation before the probate court, including trust litigation ( California Probate Code §1000). While sometimes more expensive, a deposition is usually the quickest way to get answers to questions. For those who don’t know, a deposition has the witness (deponent) swear an oath just as if they were testifying in court under penalty of perjury (California Code of Civil Procedure §2025.330). Another discovery technique (less expensive but not as quick) is to serve written questions that also have to be answered under oath (called interrogatories; California Code of Civil Procedure §2030.010) and await the response. In this case, I started out with interrogatories.

Once I received the responses to the interrogatories, it was clear to both sides that my client would prevail at hearing. More in my next post.