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Guidance to California Estate and Trust Litigants, Part III: Email Kills

April 15, 2013

Many potential trust and estate litigation clients are anxious, if not distressed, when they first call our law office, having learned that something terrible has happened to them or a loved one: a sibling, caregiver, or advisor defrauded their parents of their life savings or procured a deed to their parents’ home; a parent signed a will or trust with an unnatural disposition shortly before they died; or a sibling has accused them of elder abuse, breach of fiduciary duty, fraud, or undue influence – all circumstances that could unsettle or enrage even the most even-tempered personalities.

A client’s understandable initial response is often an angry email to the “bad guy” or to a sympathetic friend or sibling (perhaps late at night after a cocktail to “calm the nerves”). This is almost always a bad idea, and in some circumstances it can seriously damage a client’s case before it begins.

First, you will probably say something you regret — something that overstates your actual feelings, and makes you seem hostile and irrational. You are likely, in short, to express feelings rather than facts.

Second, email correspondence often doesn’t capture tone, humor, or irony; a casual aside, which, if delivered with a smile in person would seem affectionate, can cause offense when delivered in a hastily-written email.

Third, whether you are a trustee or a potential contestant or beneficiary, you are probably uninformed about the relevant legal issues and procedures, so it is a bad idea to go in print about what you are going to do or what you want someone else to do.

Finally, if you repeat something your attorneys told you, you will destroy the attorney-client privilege.

Credibility is important in litigation and can be easily lost. Since your email is likely to reach the judge presiding over your case, we generally advise clients to cease all written communications immediately, and, if absolutely necessary, limit emails to logistical details and concrete facts (e.g., “The funeral is Friday at 11:00 a.m.”; “I have the original trust and appear to be named the successor trustee.”).

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