Estate, Trust, and Elder Abuse litigation begins with the pleading stage, in which the parties formally state their claims and defenses. A lawsuit is formally commenced when the Plaintiff (or Petitioner in a probate case) files a document called a complaint (or petition), stating his or her claims against the Defendant.
Each claim is called a “cause of action,” and each cause of action entitles the plaintiff to some form of recovery. The most recent pleading we filed, for a client in Walnut Creek, included causes of action for fraud and undue influence. This week we will file a complaint in Contra Costa County containing “civil” (meaning non-probate) causes of action for financial elder abuse, fraudulent misrepresentation, negligent misrepresentation, conversion, breach of fiduciary duty, and unjust enrichment; and a “probate” cause of action to return assets wrongfully obtained from a trust.
In “civil” cases (which include most cases other than probate cases and divorce cases) the Defendant responds by filing an answer, in which he must admit or deny the allegations in the complaint. The Defendant also presents various defenses to the allegations (called “affirmative defenses”) that the Defendant believes absolve or mitigate his or her responsibility. For example, a common affirmative defense is that a claim is barred by the statute of limitations – that the time the plaintiff had to file a complaint has expired.
Cases involving wills, trusts, powers of attorney, conservatorships, and guardianships are usually filed in probate court, and are called “probate cases.” The Plaintiff in a probate case is called the Petitioner, who initiates the litigation by filing a petition. The Defendant in a probate case is called the Objector or Respondent, depending on whether he files a “response” or an “objection” to the petition. The option to file a response or an objection provides a Defendant in a probate case with more latitude than a Defendant in a civil case. If the Defendant disputes the allegations in the petition he would object; if he wanted to tell “the other side of the story” he might file a Response, informing the judge of relevant facts not stated in the petition.
Each cause of action is supported by facts that support the causes of action. At the pleading stage, the Plaintiff is not required to have proof that every factual allegation is true; rather he can allege that he is “informed and believes” that an allegation is true, and that in the course of litigation (during the “discovery phase”) he will obtain evidence proving that the alleged facts are true.
A complaint or petition ends with a “prayer,” which a statement of what monetary or other damages the plaintiff is requesting. A typical prayer in a trust or estate case might be:
Once the pleading stage is complete, the case is “at issue” and the next phase – discovery-begins.
by Loren Barr
Updated: October 28, 2020
