There are a wide variety of disputes that may arise with respect to wills, trusts and estates.

You have probably read about will and trust contests, in which a dissatisfied family member seeks to have a will or trust declared invalid. The most common grounds for contesting a will or trust are "undue influence" and lack of "testamentary capacity." Undue influence occurs when one person exercises such an extreme degree of control over another that the will or trust does not reflect the free will of the person signing it. A person lacks the mental capacity required to make a will or create a trust if he or she is unable to understand the consequences of the act, is unable to understand the nature and extent of his or her property, or is unable to recall or understand his or her relationships with those persons whose interests will be affected by the will or trust.

Although will and trust contests may be the most highly publicized disputes, they are in fact a fairly small percentage of the many types of claims concerning trusts and estates. Perhaps most common are claims by beneficiaries that a trustee or executor has committed breaches of fiduciary duty. Such breaches of fiduciary duty may include (a) mismanaging investments of the estate or trust, such as by failing to diversify; (b) purchases of assets from the estate or trust by the trustee or executor ("self-dealing"); or (c) failing to distribute the assets of the estate or trust to the persons entitled to it. Claims for breaches of fiduciary duty are often accompanied by requests that the Court remove the trustee or executor on grounds of incompetence or dishonesty.

So-called "blended families" are a fertile breeding ground for disputes, particularly when a person dies leaving both a surviving spouse and children from a prior marriage. Even if the deceased spouse has a will or trust that seems clear on its face, there may be disputes between the children and step-parent over such issues as whether particular assets are community property or separate property of the deceased parent.

Examples of Richard Cleary's experience in trust and estate disputes include:

• Otaining a judgment at trial declaring invalid on the grounds of fraud, duress and undue influence a gift of 40% of an elderly wman's estate to an individual who had worked for her as a home care provider.
• Successfully defending at trial the right of three siblings to inherit their uncle's intestate estate against an individual claiming to be the decedent's unknown brother.
• Winning a judgment following trial ordering the removal of a trustee who had improperly engaged in self-dealing by purchasing four real properties from the trust. We then obtained a large monetary settlement from the former trustee. 
• Obtaining rulings in the trial court and on appeal that trust beneficiaries' claims against a deceased former trustee for breaches of fiduciary duty would not violate the trust's "no contest" clause. After the successful appeal a settlement was reached in favor of our clients.
• Successfully defending claims that a trust amendment that gave substantially all of the trust assets, including a Newport Beach home and extensive investment real estate in La Quinta, to the decedent' sister was invalid because of undue influence and lack of capacity. 
• Obtaining a settlement for our client based on claims that her late husband's home, which he had purchased before the marriage, was partially community property because he had used his earnings during marriage to make the mortgage payments.
• Representing two sisters in obtaining the removal of a third sister as trustee of their mothers trust, and then negotiating an agreement appointing the firm's clients as managers of the restaurant business owned by the trust in place of their sister, together with monetary damages. 
• Obtaining a decree from the Probate Court modifying the terms of an irrevocable trust to provide for distributions of principal to a beneficiary who had previously been entitled only to income.
• Enforcing a former spouse's child support obligations against his interests as beneficiary of a trust.
• Preventing dissipation of a family trust by obtaining restraining orders against a woman who married an elderly, infirm widower and then began diverting assets out of his trust.