Extrinsic Fraud: Will the Real Slim Fraudster Please Stand Up?

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Extrinsic Fraud: Will the Real Slim Fraudster Please Stand Up?

California Trusts and Estates Quarterly - Volume 28, Issue 3

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1 Self-Study Credit

Course Number:

TE_Vol28_No3_2022_3

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Category: Trusts & Estates

Category: Trusts & Estates (show less)

Notwithstanding Mr. Marshall’s passionate calls for transparency, determining who the real “slim shady” is in a court of law can be challenging. That challenge becomes exceptionally important in probate cases, because the legislature has determined that orders for probate become final in a very short period of time. It is a reality that is ripe for mischief. After all, probate orders can forever include or exclude family members and decide the fate of millions of dollars in property and assets.

Understandably then, both the Probate Code and common law have ameliorated the otherwise harsh result of finality by recognizing the equitable powers of courts to set aside final orders of probate on the basis of extrinsic fraud. The concept is a simple one—if a court determines that fraud external to the proceedings themselves has been practiced, it may elect to void an otherwise final order, restoring justice.

In practice, though, it can be difficult to ferret out “the real Slim Shady.” Is it the Administrator that failed to comply with a formality? Or is it a duplicitous beneficiary seeking to introduce disruption into the process in an effort to extract some undeserved assets? Courts must ultimately determine when an order of probate is truly final, when it remains open to attack, and when it might be entirely void. It is a process fraught with pitfalls. As explained here, the answer will commonly turn on a court’s fact determination of which participant has played the part of wrongdoer – in other words, who is “the real Slim Shady?”

While there can be many attacks on an otherwise final judgment, we focus on one of the more common ones – a claimed challenge to notice.

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