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California Trust and Probate Litigation

This book is essential for litigating any trust and estate issue.

 

To receive a free copy of Handling a Probate Action Guide when you purchase California Trust and Probate Litigationplace both items in your shopping cart and use priority code 5493Z by Feb 16, 2018. Offer good for both print and OnLAW versions. Offer ends Feb 16, 2018 and cannot be combined with other offers.

This book is essential for litigating any trust and estate issue.

  • Dozens of attorney-drafted forms
  • Dispute analysis
  • Sample spreadsheets to assess a claim’s value
  • No contest clauses and other obstacles
  • Grounds for setting aside a will or trust
  • Negotiating and drafting settlements
  • Accounting, surcharge, and removal
  • Will and trust contests and Prob C §850 petitions

Read commentary by author Dominic Campisi.

OnLAW ES94850

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This book is essential for litigating any trust and estate issue.

  • Dozens of attorney-drafted forms
  • Dispute analysis
  • Sample spreadsheets to assess a claim’s value
  • No contest clauses and other obstacles
  • Grounds for setting aside a will or trust
  • Negotiating and drafting settlements
  • Accounting, surcharge, and removal
  • Will and trust contests and Prob C §850 petitions

Read commentary by author Dominic Campisi.

1

Introduction and Overview

Dominic J. Campisi

  • I. INTRODUCTION 1.1
  • II. SUBJECT AREAS 1.2
    • A. Intake and Analysis 1.3
    • B. Accounting, Surcharge, and Removal 1.4
    • C. Probate 1.5
    • D. Trusts 1.6

2

Dispute Avoidance

Dominic J. Campisi

  • I. INITIAL CASE ANALYSIS: PUTTING TRUST AND PROBATE DISPUTES IN CONTEXT
    • A. Dispute May Involve Multiple Issues 2.1
    • B. Factors to Consider When Dispute May Arise 2.2
  • II. PREDEATH STRATEGIES TO AVOID DISPUTES
    • A. Disclosure 2.3
    • B. Family Meetings
      • 1. Agreement to Estate Plan 2.4
      • 2. No-Contest Clause as Threat
        • a. Use of Clause as Settlement Vehicle 2.5
        • b. Wording of Clause 2.6
      • 3. Other Financial Pressures
        • a. Conditional Gifts 2.7
        • b. Cutting Off Income or Remainder Interests 2.8
        • c. Providing That Trust Funds Will Be Used to Defend Challenges 2.9
        • d. Counseling Client About Punitive Trust Terms 2.10
    • C. Signing Ceremony
      • 1. Witnesses to Signing 2.11
      • 2. Witnesses to Capacity 2.12
      • 3. Conduct of Ceremony
        • a. Timing of Ceremony 2.13
        • b. Recitals and Documentation of Ceremony 2.14
      • 4. Ceremony for Trust Execution 2.15
      • 5. Videotapes as Evidence of Capacity
        • a. Advantages and Use of Videos 2.16
        • b. Disadvantages of Videos 2.17
      • 6. Note Taking 2.18
    • D. Probate of Will as Estopping Challenge to Trust 2.19
    • E. Sequential Transfer Documents 2.20
    • F. Predeath Contests 2.21
    • G. Preserving Witness Testimony Before Contest 2.22
    • H. Conservatorship Proceedings
      • 1. Use to Avoid Disputes 2.23
      • 2. Correcting Conservatee's Estate Plan 2.24

3

Attorney-Client Relations

Dominic J. Campisi

  • I. ESTABLISHING ATTORNEY-CLIENT RELATIONSHIP
    • A. General Considerations 3.1
    • B. Identifying Parties Involved in Estate or Trust 3.2
    • C. Who Is the Client? 3.3
    • D. Receipt of Confidential Information 3.4
    • E. Attorney as Percipient Witness 3.5
    • F. Professional Competence
      • 1. Compliance With Cal Rules of Prof Cond 3–110 3.6
      • 2. What Probate or Trust Litigator Needs to Know 3.7
      • 3. Sharing Client Relationship 3.8
        • a. Association 3.9
        • b. Referral 3.10
  • II. CONFLICTS OF INTEREST
    • A. Conflicts Among Clients 3.11
      • 1. Rules of Professional Conduct 3.12
      • 2. Possible Conflict Situations 3.13
      • 3. Dealing With Conflicts 3.14
      • 4. Problems With Multiple Clients 3.15
    • B. Conflicts Between Attorney and Client 3.16
  • III. ATTORNEY FEES 3.17
    • A. Economic Considerations
      • 1. Estimating Litigation Fees and Expenses 3.18
      • 2. Additional Considerations 3.19
      • 3. Cash Flow Evaluation; Hybrid Fee Arrangements 3.20
    • B. Statutory Requirements 3.21
      • 1. Noncontingency Fee Contracts 3.22
      • 2. Contingency Fee Contracts 3.23
        • a. Services Covered by Agreement 3.24
        • b. Variable Contingency Fee Agreements 3.25
        • c. Collectibility of Fee 3.26
        • d. Limitations for Minors in Local Rules 3.27
    • C. Potential for Reimbursement From Third Parties 3.28
      • 1. Reimbursement From Estate Based on Preservation of Common Fund 3.29
      • 2. Reimbursement From Trust 3.30
      • 3. Reimbursement From Party Acting Improperly 3.31
      • 4. Risk of Adverse Judgment for Costs and Fees 3.32
    • D. Representing Fiduciaries 3.33
      • 1. Limitation on Fees of Personal Representative 3.34
      • 2. Ordinary Fees in Trust Proceedings 3.35
      • 3. Litigation Fees 3.36
      • 4. Advance Authorization for Attorney Fees and Costs
        • a. Hourly Fees 3.37
        • b. Advance Approval of Contingency Fee Agreements 3.38
      • 5. Compensation in Dry Probate 3.39
  • IV. DEDUCTIBILITY OF ATTORNEY FEES
    • A. Income and Estate Tax 3.40
    • B. Tax Considerations in Structuring Judgments and Settlements 3.41
  • V. FORM: VARIABLE CONTINGENCY FEE AGREEMENT—WILL AND TRUST CONTEST 3.42

4

Dispute Analysis

Dominic J. Campisi

David G. Knitter

James P. Lamping

  • I. FACT-GATHERING
    • A. Necessity of Factual Basis for Incapacity 4.1
    • B. Interviewing Medical Personnel 4.2
    • C. Debriefing Client About Opponent 4.3
    • D. Determining Client's Standing
      • 1. Family Tree 4.4
      • 2. Interested Persons 4.5
      • 3. Intestate Heirs and Other Persons With Standing 4.6
    • E. Searching Probate Files 4.7
    • F. Obtaining Asset Information
      • 1. Knowledge of Relatives 4.8
      • 2. Title Searches and Computer Programs 4.9
  • II. INITIALLY ASCERTAINING CLIENT'S POTENTIAL INTERESTS
    • A. Dispositive Documents 4.10
    • B. Spousal Property Rights 4.11
    • C. Jointly Held Assets 4.12
      • 1. Multiple-Party Accounts 4.13
      • 2. Joint Tenancy Assets 4.14
    • D. Other Nonprobate Assets 4.15
    • E. Durable Powers of Attorney 4.16
    • F. Attacks on Disqualified Transferees 4.17
  • III. Quantifying Client's Potential Financial Interests
    • A. Adopting Quantified Approach
      • 1. Need to Quantify Interests 4.17A
      • 2. Four-Step Approach to Quantifying Claims 4.17B
    • B. Common Issues to Consider
      • 1. Scope of Examples 4.17C
      • 2. Are Missing Assets Recoverable? 4.17D
      • 3. Time Value of Money 4.17E
      • 4. Shifting Interests Under Dispositive Documents 4.17F
      • 5. Effect on Alliances With Other Beneficiaries 4.17G
      • 6. Possible Legal Fees and Expenses 4.17H
      • 7. Who Will Pay Litigation Fees and Expenses? 4.17I
        • a. Trust or Estate Funds Financing Fiduciary Participation 4.17J
        • b. Beneficiary's Payment of Attorney Fees 4.17K
        • c. Payment by Residuary Beneficiaries 4.17L
        • d. Fee-Shifting Issues 4.17M
      • 8. Choice of Law 4.17N
      • 9. Available Remedies 4.17O
      • 10. Appeals and Unsettled Issues of Law 4.17P
      • 11. Impact of Taxes 4.17Q
      • 12. Spousal Rights 4.17R
    • C. Sample Spreadsheets 4.17S
      • 1. Challenge to Trust Amendment Changing Beneficiaries' Percentages
        • a. Form: Chart: Larger Estate; Interests of Beneficiaries 4.17T
        • b. Table: Larger Estate; Interests of Beneficiaries After Taxes, Costs, and Administration Expenses 4.17U
        • c. Table: Smaller Estate; Interests of Beneficiaries 4.17V
      • 2. Valuing Assets in Fluctuating Market
        • a. Table: Larger Estate 4.17W
        • b. Table: Smaller Estate 4.17X
      • 3. Table: Challenge to Trust Amendment Increasing Spousal Gift 4.17Y
      • 4. Table: Challenge to Low-Basis, High-Value Inter Vivos Gift 4.17Z
      • 5. Table: Undisputed Charitable Bequest; Challenge to Trust Amendment 4.17AA
      • 6. Table: Challenge to Charitable Bequest 4.17BB
      • 7. Table: Property in Multiple States; No-Contest Clause 4.17CC
  • IV. TIME BARS ON POTENTIAL CLAIMS 4.18
  • V. WHEN PROCEEDING REQUIRES SPECIAL EXPERTISE 4.19
    • A. Ethical Duty to Act Competently 4.20
    • B. Malpractice for Failure to Refer to Specialist 4.21
    • C. Need for Tax Expertise 4.22
    • D. Need for Medical and Capacity Expertise 4.23
  • VI. FINDING ALLIES
    • A. Importance of Identifying Allies 4.24
    • B. Beneficiaries: Danger of Triggering No-Contest Clauses 4.25
    • C. Fiduciaries
      • 1. The Goal: Support or Neutrality 4.26
        • a. Is There a Challenge to Estate? 4.27
        • b. Does Fiduciary Have Duty to Act? 4.28
      • 2. Eliminating Fiduciaries as Opponents 4.29
      • 3. Appointment of Conservator to Recover Property 4.30
    • D. Guardian Ad Litem
      • 1. Appointment 4.31
      • 2. Practical Considerations 4.32
    • E. Attorney General When Charitable Interests Are Involved 4.33
    • F. District Attorney, IRS Agent, Elder Law Agencies, and Other Law Enforcement Officials 4.34

5

No-Contest Clauses and Other Obstacles to Litigation

John A. Duncan

Andrew Zabronsky

  • I. INTRODUCTION 5.1
  • II. NO-CONTEST CLAUSES
    • A. Introduction
      • 1. Effect of No-Contest Clauses 5.2
      • 2. Deterrence Effect 5.3
      • 3. Traditional Enforcement of No-Contest Clauses 5.4
      • 4. Divergent Enforcement Regimes For No-Contest Clauses 5.5
    • B. Law Applicable to Instruments That Became Irrevocable on or After January 1, 2010 (Which Is Presumptively Applicable to Instruments That Became Irrevocable on or After January 1, 2001, but Before January 1, 2010)
      • 1. Operative Date of New Law 5.6
      • 2. Under The Current Law, No-Contest Clauses Are Enforceable Against Only Three Types of Contests 5.7
      • 3. Direct Contests Without Probable Cause
        • a. General Rule 5.8
        • b. Direct Contest 5.9
        • c. Protected Instrument 5.10
        • d. Probable Cause 5.11
      • 4. Challenges to Ownership of Property 5.12
      • 5. Filing or Prosecuting Creditor's Claim 5.13
      • 6. No Statutory Safe Harbor Procedure 5.14
    • C. Law Applicable to Instruments That Became Irrevocable on or After January 1, 2001 but Before January 1, 2010 5.15
    • D. Law Applicable to Instruments That Became Irrevocable Before January 1, 2001 5.16
      • 1. General Enforceability of No-Contest Clauses 5.17
      • 2. Statutory Definition of "Contest" 5.18
      • 3. Actions That Thwart Estate Plan 5.19
      • 4. Proceedings to Characterize Property 5.20
      • 5. Amendments and Other Instruments 5.21
      • 6. Exceptions to Enforcement of No-Contest Clauses
        • a. Public Policy Exceptions 5.22
        • b. Other Statutory Exceptions 5.23
        • c. Nonstatutory Exceptions 5.24
      • 7. Declaratory Relief: "Safe Harbor" Provisions 5.25
        • a. Limitations on Petition for Declaratory Relief 5.26
        • b. Appeal of "Safe Harbor" Order 5.27
    • E. Triggering No-Contest Clause
      • 1. Avoidance of Inadvertent Triggering of No-Contest Clause 5.28
      • 2. Intentional Triggering of Potential No-Contest Clause 5.29
      • 3. Interrelationship With Statute of Limitations for Persons Receiving Trustee Notice (Prob C §16061.7) 5.30
  • III. PROCEDURAL OBSTACLES TO ACTION
    • A. Statutes of Limitation and Other Time Requirements 5.31
      • 1. Will Contests 5.32
      • 2. Trust Contests 5.33
      • 3. Creditor Claims 5.34
      • 4. Distribution and Ownership Actions 5.35
      • 5. Breach of Trust Litigation 5.36
      • 6. Time to Respond to Probate and Trust Petitions 5.37
      • 7. Time to Object to Account or Report 5.38
    • B. Statute of Frauds and Other Writing Requirements
      • 1. Contracts to Make Wills 5.39
      • 2. Spousal Property Transmutation Agreements 5.40
      • 3. Spousal Waivers 5.41
    • C. Evidentiary Issues
      • 1. Attorney-Client Privilege 5.42
        • a. Privilege of Decedent Client 5.43
        • b. Privilege of Trustee or Personal Representative 5.44
      • 2. Availability of Witnesses 5.45
      • 3. Voluminous Documents 5.46
      • 4. Evidentiary Problems With Audiotapes and Videotapes 5.47
  • IV. SUBSTANTIVE BARRIERS TO ACTION
    • A. Fiduciary Protections 5.48
      • 1. Exculpatory Provisions 5.49
      • 2. Limited Review of Discretionary Decisions 5.50
      • 3. Personal Representative Taking Property in Good Faith 5.51
      • 4. Court May Excuse Breach of Fiduciary Duty 5.52
    • B. Arbitration Provisions 5.53
    • C. ERISA Preemption 5.54
  • V. PRACTICAL PROBLEMS
    • A. Shifting of Defense Costs 5.55
      • 1. Payment of Defense Costs by Estate or Trust 5.56
      • 2. Deductibility of Attorney Fees and Costs 5.57
        • a. Limitations on Deductibility of Fees and Costs 5.58
        • b. Deductibility of Beneficiary's Fees and Costs 5.59
    • B. Award of Fees for "Unreasonable" Litigation 5.60
      • 1. Contests of Accounts 5.61
      • 2. Creditor Claims 5.62
    • C. Complexity of Challenges to Accountings 5.63
    • D. Retaliatory Malicious Prosecution Actions 5.64
    • E. Nonlegal Retaliatory Actions
      • 1. Generally 5.65
      • 2. Family Discord 5.66
      • 3. Disinheritance 5.67
      • 4. Hostile Fiduciaries 5.68
  • VI. POTENTIAL TAX CONSEQUENCES OF LITIGATION 5.69
    • A. Income Taxation of Recoveries 5.70
    • B. Deductibility of Payments and Distributions 5.71
      • 1. Sham Contests 5.72
      • 2. Nonqualified Disclaimers 5.73
      • 3. Reformation of Wills and Trust Instruments to Obtain More Favorable Tax Result in Litigation 5.74

6

Grounds for Setting Aside Will or Trust

James A. Barringer

Noël M. Lawrence

  • I. INTRODUCTION 6.1
  • II. LACK OF CAPACITY 6.2
    • A. Testamentary Capacity 6.3
    • B. Capacity to Create Trust 6.4
    • C. Presumptions and Burden of Proof 6.5
    • D. Due Process in Competence Determinations Act 6.6
      • 1. Purpose and Applicability 6.7
      • 2. What Constitutes Lack of Capacity 6.8
      • 3. Evidentiary Requirements 6.9
      • 4. Implications for Psychiatric Testimony 6.10
    • E. Evidence Regarding Capacity 6.11
      • 1. Medical and Psychiatric Testimony 6.12
      • 2. Testimony of Attorney 6.13
      • 3. Testimony of Subscribing Witness 6.14
      • 4. Adjudication of Incompetence 6.15
      • 5. Ability to Transact Business 6.16
      • 6. History of Mental Disorder 6.17
      • 7. Foibles and Eccentricities 6.18
      • 8. Senile Dementia 6.19
      • 9. Alcohol and Drug Abuse 6.20
  • III. UNDUE INFLUENCE
    • A. Underlying Law 6.21
    • B. Proof by Circumstantial Evidence 6.22
    • C. Shifting Burden of Proof 6.23
      • 1. Confidential Relationship 6.24
      • 2. Active Participation 6.25
      • 3. Undue Profit 6.26
  • IV. FRAUD 6.27
    • A. Elements and Pleading 6.28
    • B. Comparison and Overlap With Undue Influence 6.29
  • V. DURESS OR MENACE 6.30
  • VI. MISTAKE 6.31
  • VII. LIMITATIONS ON TRANSFERS TO DRAFTERS AND OTHERS
    • A. Disqualified Transferees 6.32
    • B. Statute of Limitations 6.33

6A

Statutorily Disqualified Donees and Trustees

David W. Baer

Michael B. McNaughton

  • I. INTRODUCTION
    • A. General Operation and Purpose 6A.1
    • B. Legislative History 6A.2
    • C. Advantages Over Will or Trust Contest 6A.3
  • II. SCOPE OF STATUTE
    • A. "Instruments" and "Donative Transfers" Subject to Statute 6A.4
    • B. Effective Date 6A.5
    • C. Invalidity of Waivers 6A.6
    • D. Grounds for Removal of Sole Trustee 6A.7
  • III. INVALIDATED DONATIVE TRANSFERS 6A.8
    • A. Prohibited Transferees 6A.9
      • 1. Drafter 6A.10
      • 2. Drafter's Relatives, Spouse, Domestic Partner, Cohabitant, and Employees 6A.11
      • 3. Drafter's Law Partners and Employees 6A.12
      • 4. Fiduciary Who Transcribes Instrument or Causes Its Transcription 6A.13
      • 5. Fiduciary-Transcriber's Relatives, Spouse, Domestic Partner, Cohabitant, and Employees 6A.14
      • 6. Care Custodian of Dependent Adult 6A.15
    • B. Exceptions 6A.16
      • 1. Transferor's Blood Relatives, Spouse, Cohabitant, or Domestic Partner 6A.17
      • 2. Certificate of Independent Review 6A.18
      • 3. Form: Certificate of Independent Review Under Prob C §21384 6A.19
      • 4. Instruments Approved by Substituted Judgment 6A.20
      • 5. Evidence Clearly and Convincingly Disproving Fraud or Undue Influence 6A.21
        • a. Disproving Undue Influence 6A.22
        • b. Liability for Costs 6A.23
      • 6. Gifts to Public Entities or Charities 6A.24
      • 7. De Minimis Gifts 6A.25
      • 8. Gifts by Nonresidents 6A.26
    • C. Statute of Limitations 6A.27
    • D. Standing to Bring Proceeding 6A.28
    • E. Applicability of No-Contest Clause 6A.29
  • IV. LIABILITY FOR MAKING INVALID TRANSFERS 6A.30
  • V. FORM: WILL CONTEST AND GROUNDS FOR OPPOSITION TO PROBATE OF PURPORTED WILL UNDER PROB C §21380 6A.31
  • VI. REMOVAL OF SOLE TRUSTEE
    • A. Grounds for Removal 6A.32
    • B. Exceptions 6A.33
      • 1. Spouse, Cohabitant, and Blood Relatives 6A.34
      • 2. Certificate of Independent Review 6A.35
      • 3. Trust Instrument Created by Substituted Judgment 6A.36
    • C. Applicability of No-Contest Clause 6A.37
    • D. Award of Attorney Fees 6A.38
    • E. Form: Petition for Removal of Trustee 6A.39
  • VII. GROUNDS FOR ATTORNEY DISCIPLINE 6A.40

7

Multiple Proceedings

Dominic J. Campisi

  • I. TACTICAL CONSIDERATIONS
    • A. Variety of Actions and Forums Available 7.1
    • B. Costs and Benefits of Multiple Proceedings and Attendant Delay 7.2
    • C. Jury Issues 7.3
    • D. Equitable Issues Generally Tried First 7.4
  • II. TYPES OF ACTIONS
    • A. Attack on Pour-Over Will, Inter Vivos Trust, or Both 7.5
      • 1. Defensive Considerations 7.6
      • 2. Offensive Considerations 7.7
      • 3. Tortious Interference With Expected Inheritance 7.8
    • B. Alternative Claims 7.9
      • 1. Oral Agreement to Make Will 7.10
      • 2. Palimony (Marvin) Claims 7.11

8

Remedies Under Elder Abuse Provisions

Irene L. Silverman

  • I. INTRODUCTION
    • A. Generally 8.1
    • B. Nonexclusivity of Remedies Under EADACPA 8.2
    • C. Statute of Limitations 8.3
    • D. Definitions
      • 1. Persons Protected by EADACPA 8.4
      • 2. Financial Abuse 8.5
      • 3. Elder or Dependent Adult Who Lacks Capacity 8.5A
    • E. Threshold for Recovery Under EADACPA 8.6
    • F. Medical Negligence Causes of Action 8.7
  • II. ENHANCED REMEDIES UNDER EADACPA
    • A. Postmortem Damages for Pain and Suffering 8.8
    • B. Mandatory Attorney Fees 8.9
      • 1. Value of Attorney Services 8.10
      • 2. Defendant's Efforts to Determine Liability 8.11
      • 3. Written Offers in Compromise 8.12
    • C. Conservator's Fees 8.13
    • D. Earnings Withholding Orders 8.13A
    • E. Jurisdiction
      • 1. Concurrent Probate and Civil Court Jurisdiction 8.14
        • a. Benefits of Concurrent Probate Court Jurisdiction 8.15
        • b. Questions Concerning Concurrent Applicability of Conservatorship and Civil Action Procedures 8.16
        • c. Contractual Arbitration 8.17
  • III. ELDER ABUSE CLAIMS WITHIN TRUST AND ESTATE LITIGATION
    • A. Client Information and Factual Analysis 8.18
    • B. Cautions About Threats of Elder Abuse Litigation 8.19
    • C. Setting Up Elder Abuse Case in Trust and Estate Litigation 8.20
    • D. Risk of Malicious Prosecution Charge 8.21
    • E. Standing
      • 1. Standing to Bring Elder Abuse Action While the Elder Is Living 8.22
      • 2. Standing to Commence or Maintain Elder Abuse Action After the Elder Has Died 8.22A
      • 3. Special Concerns in Trust and Estate Litigation 8.23
      • 4. Potential Liability for Surcharge 8.24
    • F. Examples of Fact Situations That Give Rise to Trust and Estate and Elder Abuse Claims 8.25
  • IV. PLEADINGS IN COMPLAINT FOR RELIEF UNDER EADACPA
    • A. Generally 8.26
    • B. Form: Allegations of Abuse Showing Applicability of EADACPA Remedies 8.27

9

Procedural Issues

Stella Pantazis

  • I. JURISDICTION 9.1
    • A. Exclusive Jurisdiction
      • 1. Probate 9.2
      • 2. Trusts 9.3
    • B. Concurrent Jurisdiction
      • 1. Probate 9.4
      • 2. Trusts 9.5
    • C. Federal Jurisdiction 9.6
  • II. VENUE
    • A. Probate 9.7
    • B. Trusts 9.8
    • C. Motion for Change of Venue in Trust Proceedings 9.9
  • III. STANDING
    • A. Interested Persons Generally 9.10
    • B. Heirs and Devisees 9.11
    • C. Personal Representatives 9.12
    • D. Trustees 9.13
    • E. Creditors 9.14
  • IV. LOCAL COURT RULES AND NOTICE REQUIREMENTS 9.15
  • V. PETITION FOR INSTRUCTIONS 9.16
  • VI. NOTICE AND SERVICE
    • A. By Mail
      • 1. Probate Proceedings 9.17
      • 2. Trust Proceedings 9.18
    • B. Personal Delivery 9.19
    • C. Citations 9.20
  • VII. AFFIDAVITS AND DECLARATIONS 9.21
  • VIII. VERIFICATION OF PLEADINGS 9.22

10

Litigation Tools: An Overview

Michael G. Desmarais

Kristofer W. Biorn

  • I. INTRODUCTION 10.1
  • II. BEGINNING LITIGATION 10.2
  • III. LAW AND MOTION PRACTICE
    • A. Type of Pleading 10.3
      • 1. Drafting Motion Papers 10.4
      • 2. Caption 10.5
      • 3. Form: Sample Caption 10.6
    • B. Where Is Law and Motion Heard? 10.7
    • C. Tentative Ruling Procedures 10.8
    • D. Demurrer 10.9
    • E. Motion to Strike 10.10
    • F. Motion for Judgment on Pleadings 10.11
    • G. Motion to Dismiss for Failure to Serve Summons or to Bring Case to Trial 10.12
    • H. Motion for Summary Judgment or Summary Adjudication 10.13
  • IV. CONDUCTING DISCOVERY 10.14
    • A. Informal Discovery 10.15
      • 1. Inspecting Records 10.16
      • 2. Retaining Expert Witnesses 10.17
    • B. Formal Discovery
      • 1. Order of Discovery 10.18
      • 2. Where Discovery Motions Are Heard 10.19
      • 3. Judge or Commissioner 10.20
      • 4. Civil Discovery Devices
        • a. Production Demands; Subpoena Duces Tecum 10.21
          • (1) Decedent's Medical History 10.22
          • (2) Business Records 10.23
        • b. Depositions 10.24
        • c. Interrogatories
          • (1) Number and Use 10.25
          • (2) Recommended Form Interrogatories 10.25A
        • d. Requests for Admission 10.26
        • e. Exchange of Expert Information 10.27
        • f. Discovery Before or After Action 10.28
        • g. Exhuming Body in Will Contest 10.29
      • 5. Discovery Procedures Unique to Probate Proceedings 10.30
        • a. Citation to Answer Interrogatories or Appear for Examination 10.31
        • b. Propounding and Answering Interrogatories 10.32
        • c. Conduct of Examination 10.33
        • d. Appearance to Account for Estate Property 10.34
          • (1) Form: Petition for Issuance of Citation Requiring Citee to Appear and Account for Estate Property 10.35
          • (2) Form: Declaration Supporting Petition for Issuance of Citation 10.36
        • e. Nonexclusivity of Probate Discovery Procedures 10.37
  • V. TRIAL SETTING
    • A. Probate Department Trial Date 10.38
    • B. Trial Without Evidentiary Hearing 10.39
    • C. Right to Evidentiary Hearing 10.39A
    • D. Case Management Rules in Civil Department 10.40
    • E. Trial Date Motions 10.41
    • F. Jury Trial Demand 10.42
    • G. Disqualifying Judge 10.43
  • VI. PRETRIAL PRACTICE
    • A. Settlement
      • 1. Mandatory Settlement Conference 10.44
      • 2. CCP §998 Settlement Offer 10.45
      • 3. If Case Settles 10.46
    • B. Trial Preparation 10.47
      • 1. Witnesses 10.48
        • a. Compelling Attendance and Production 10.49
        • b. Preparing Witnesses for Trial 10.50
      • 2. Documents 10.51
      • 3. Other Exhibits 10.52
      • 4. Pretrial Motions
        • a. Motions to Consolidate, Sever, and Change Order of Trial 10.53
        • b. Motions in Limine 10.54
      • 5. Trial Briefs and Trial Memorandums 10.55
  • VII. TRIAL
    • A. Chambers Conference 10.56
    • B. Courtroom Attendance 10.57
    • C. Jury Selection 10.58
    • D. Opening Statement 10.59
    • E. Order of Proof 10.60
    • F. Phases of Examination 10.61
    • G. Introducing Evidence 10.62
      • 1. Witness Testimony 10.63
      • 2. Opinion Testimony
        • a. Lay Witnesses 10.64
        • b. Expert Witnesses 10.65
          • (1) Qualifying Expert 10.66
          • (2) Examining Expert 10.67
      • 3. Documentary Evidence
        • a. Uses 10.68
        • b. Authentication and Proof 10.69
        • c. Secondary Evidence 10.70
      • 4. Material Objects and Other Things 10.71
      • 5. Judicial Notice 10.72
      • 6. Hearsay 10.73
      • 7. Evidence Excluded by Extrinsic Policies 10.74
      • 8. Privileges 10.75
      • 9. Attorney-Client Privilege 10.76
      • 10. Attorney Work Product Privilege 10.76A
      • 11. Objecting to Evidence 10.77
    • H. Motions During Trial
      • 1. Motion for Judgment 10.78
      • 2. Motion for Nonsuit 10.79
      • 3. Motion for Directed Verdict 10.80
      • 4. Motion for Continuance 10.81
      • 5. Motion to Reopen Case 10.82
      • 6. Motion for Mistrial 10.83
      • 7. Motion to Amend Pleadings to Conform to Proof 10.84
    • I. Instructing Jury 10.85
    • J. Closing Argument 10.86
    • K. Decision, Verdict, and Judgment 10.87
  • VIII. POSTTRIAL PRACTICE
    • A. Motion for Judgment Notwithstanding Verdict 10.88
    • B. Motion for New Trial 10.89
    • C. Motion to Vacate and Enter Different Judgment 10.90
    • D. Attorney Fees and Costs 10.91
    • E. Civil Writs
      • 1. Introduction 10.92
      • 2. Procedure 10.93
  • IX. ENFORCEMENT PRACTICE 10.94
  • X. APPENDIXES
    • A. Form: Sample Special Interrogatories in Will Contest Proceeding 10.95
    • B. Form: Sample Requests for Admission in Will Contest Proceeding 10.96
    • C. Form: Sample Request for Production in Will Contest Proceeding 10.97

11

Alternative Dispute Resolution

Thomas W. Latham

  • I. ALTERNATIVE DISPUTE RESOLUTION (ADR)
    • A. Modern Trend Toward ADR 11.1
    • B. Benefits of ADR: Greater Control Over Case Management 11.2
      • 1. Selecting Appropriate ADR Method 11.3
        • a. Cases With Strong Emotional Issues 11.4
        • b. Cases With Complicated Accounting 11.5
        • c. Cases Involving Disputed Control of Family Business 11.6
        • d. Cases With Complex Factual or Legal Issues 11.7
        • e. Cases With Undisputed Facts and Simple Legal Issues 11.8
        • f. Cases With Small Amount at Stake, Simple Facts, and Simple Legal Issues 11.9
      • 2. Selecting Neutral Person 11.10
      • 3. Control Over Timing 11.11
  • II. ALTERNATIVE DISPUTE RESOLUTION FORMATS: COMPARATIVE ADVANTAGES IN PROBATE AND TRUST LITIGATION
    • A. Variables Among ADR Formats 11.12
      • 1. Negotiation Directly by Parties 11.13
      • 2. Negotiation Through Counsel 11.14
      • 3. Party-Initiated Nonevaluative Mediation 11.15
        • a. Factors in Selecting Nonevaluative Mediation 11.16
        • b. Role of Party Participation and Controlled "Venting" in Nonevaluative Mediation 11.17
        • c. Mediator Qualifications 11.18
      • 4. Party-Initiated Evaluative Mediation 11.19
        • a. Factors in Selecting Evaluative Mediation 11.20
        • b. Mediator Qualifications 11.21
      • 5. Court-Initiated Mediation 11.22
      • 6. Court-Supervised Settlement Conference 11.23
      • 7. Court-Ordered Nonbinding Arbitration 11.24
      • 8. Voluntary Binding Arbitration 11.25
      • 9. Voluntary General Reference to Referee 11.26
      • 10. Court-Ordered Special Reference to Referee 11.27
      • 11. Stipulated Reference to Judge Pro Tem for Summary Determination 11.28
      • 12. Stipulated Trial to Judge Pro Tem 11.29
      • 13. Trial by Probate Court 11.30
    • B. Flexibility, Innovation, and Control 11.31

11A

Negotiating and Drafting Settlement Agreements

Shirley L. Kovar

  • I. INTRODUCTION 11A.1
  • II. BEFORE NEGOTIATIONS BEGIN 11A.2
    • A. Facilitation Agreements 11A.3
      • 1. Standstill Agreements 11A.4
      • 2. Tolling Agreements 11A.5
      • 3. Other Preconditions 11A.6
    • B. Planning for Taxes
      • 1. Issues to Consider 11A.7
      • 2. Tax Strategies 11A.8
  • III. CONDUCTING NEGOTIATIONS TO ENHANCE AND SUSTAIN SETTLEMENT
    • A. Avoiding Conduct That Invites Anger 11A.9
    • B. Ensuring Parties Are Agreeing to Same Deal 11A.10
    • C. Ensuring Attorney Has Legal Authority to Settle 11A.11
    • D. Negotiating Entire Form of Agreement 11A.12
    • E. Avoiding Misrepresentations 11A.13
    • F. Avoiding Pressure Tactics 11A.14
    • G. Acting Promptly If Opponent Reneges
      • 1. Consider Tactics to Discourage Reneging and Enforce Settlement 11A.15
      • 2. Confirm No Obstacles to Enforcement 11A.16
      • 3. Consider Enforceability of Oral Agreement
        • a. Oral Agreements on the Record 11A.17
        • b. Oral Agreements Not on the Record 11A.18
  • IV. DRAFTING SETTLEMENT AGREEMENT 11A.19
    • A. Drafting Considerations
      • 1. Settlement Agreement as Type of "Estate Plan" 11A.20
      • 2. Drafting for Consequences 11A.21
      • 3. Organization of Agreement 11A.22
      • 4. Stating the Obvious 11A.23
      • 5. Watching for "Premature Settlements" 11A.24
    • B. Form Provisions 11A.25
    • C. Signatories to Agreement
      • 1. Heirs and Beneficiaries 11A.26
      • 2. Trustees, Personal Representatives, Guardians, and Other Fiduciaries 11A.27
    • D. Definitions 11A.28
    • E. Recitals 11A.29
    • F. Agreements and Releases 11A.30
      • 1. Form: Agreement Regarding Tax Consequences 11A.31
      • 2. Form: Exclusion of Specific Clause 11A.32
      • 3. Form: Agreement Admissible as Evidence 11A.33
      • 4. Release
        • a. Scope of Release 11A.34
        • b. Form: General Release 11A.35
      • 5. Form: Dismissal of Pending Cases 11A.36
      • 6. Violation of No Contest Clause 11A.37
      • 7. Form: Payment of Each Party's Legal Fees 11A.38
      • 8. Form: Disclaimer of Liability 11A.39
      • 9. Form: Liquidated Damages and Venue 11A.40
      • 10. Form: Disclosure Acknowledgment 11A.41
    • G. Standard Provisions 11A.42
      • 1. Form: Comprehension of Agreement 11A.43
      • 2. Form: Opportunity to Be Represented by Counsel 11A.44
      • 3. Form: Integration of Agreement 11A.45
      • 4. Form: Governing Law 11A.46
      • 5. Form: Interpretation of Agreement 11A.47
      • 6. Form: Further Documents 11A.48
      • 7. Covenant Not to Sue 11A.49
      • 8. Form: Warranty of Capacity to Execute Agreement 11A.50
      • 9. Form: Authorization to Sign 11A.51
      • 10. Form: Attorney Fees for Enforcement Proceedings 11A.52
      • 11. Severability Clause
        • a. Consider Including Severability Clause 11A.53
        • b. Form: Severability 11A.54
      • 12. Form: Disputes to Be Mediated 11A.55
      • 13. Confidentiality Provision 11A.56
      • 14. Form: Agreement Is Binding on Successors 11A.57
      • 15. Form: Counterparts 11A.58
      • 16. Effective Date 11A.59
  • V. APPENDIX: SAMPLE MUTUAL GENERAL RELEASE AND SETTLEMENT AGREEMENT 11A.60

12

Trust and Probate Litigation Settlement Issues

Thomas W. Latham

  • I. INTRODUCTION 12.1
  • II. SETTLEMENT ISSUES COMMONLY ENCOUNTERED IN PROBATE AND TRUST LITIGATION
    • A. Dividing Real Property 12.2
    • B. Dividing Property With Emotional Rather Than Economic Value 12.3
    • C. Fixed Sum Negotiations Versus Percentage Negotiations 12.4
  • III. TAX PLANNING TO FACILITATE SETTLEMENTS IN TRUST AND PROBATE LITIGATION
    • A. Importance of Tax Analysis 12.5
    • B. Using Spreadsheets 12.6
    • C. Effect of Settlement Agreement on IRS 12.7
    • D. Examples of Potential Tax Impacts
      • 1. Marital Deduction 12.8
      • 2. Fractional Interest Discount 12.9
      • 3. Joint Tenancy Versus Community Property 12.10
  • IV. COURT APPROVAL OF SETTLEMENTS 12.11
    • A. Probate Settlements 12.12
      • 1. Personal Representative Without IAEA Powers 12.13
      • 2. Personal Representative With IAEA Powers 12.14
        • a. Notice of Proposed Action by Personal Representative With IAEA Powers 12.15
        • b. Procedure for Obtaining Court Authorization 12.16
      • 3. Minors and Persons With Disabilities 12.17
    • B. Trust Settlements 12.18
      • 1. Procedure for Obtaining Court Authorization 12.19
      • 2. Binding Minor and Unborn Beneficiaries 12.20

13

Accountings and Surcharge

Thomas W. Latham

Nancy M. Levin

  • I. TRUSTEE'S DUTY TO ACCOUNT AND REPORT INFORMATION
    • A. Scope of Duty 13.1
      • 1. Revocable Trust 13.2
      • 2. Irrevocable Trust 13.3
      • 3. Testamentary Trust Subject to Continuing Court Supervision 13.4
    • B. Effect of Beneficiary Waiver of Account 13.5
    • C. Exculpatory Provision in Trust Instrument 13.5A
    • D. Trust Account to Beneficiaries
      • 1. Contents 13.6
      • 2. Statute of Limitations 13.7
      • 3. Proof of Service 13.8
      • 4. Beneficiary Approval and Release 13.9
    • E. Trust Account to Court 13.10
      • 1. Contents, Format, and Notice 13.11
      • 2. Court Review and Res Judicata 13.12
    • F. Trustee's Protective Strategies: Factors in Deciding Whether to Seek Court Approval 13.13
      • 1. Privacy 13.14
      • 2. Beneficiary Approval 13.15
      • 3. Length of Exposure Period 13.16
    • G. Compelling Trustee to Account
      • 1. Standing and Grounds to Compel Account
        • a. Requirements of Written Request, 60-Day Wait, and No Account Within Previous 6 Months 13.17
        • b. No Requirements on Showing of Reasonable Likelihood of Material Breach 13.18
        • c. Statute of Limitations 13.19
      • 2. Notice 13.20
      • 3. Form: Petition to Compel Trustee to Account 13.21
      • 4. Opposition to Petition 13.22
      • 5. Form: Order Compelling Trustee to Account 13.23
      • 6. Remedies if Trustee Fails to Comply With Order Compelling Trustee to Account 13.24
  • II. PERSONAL REPRESENTATIVE'S DUTY TO ACCOUNT AND REPORT
    • A. Scope of Duty 13.25
    • B. Effect of Beneficiary Waiver of Account 13.26
    • C. Estate Account to Court
      • 1. Contents, Format, and Notice 13.27
      • 2. Court Review and Res Judicata; Limitations 13.28
        • a. Matter Must Have Been Raised and Passed on 13.29
        • b. No Material Misrepresentation or Material Omission in Petition, Account, or Judgment 13.30
        • c. No Extrinsic Fraud 13.31
    • D. Compelling Personal Representative to Account
      • 1. Standing and Grounds to Compel Account 13.32
      • 2. Procedure and Notice 13.33
      • 3. Form: Petition for Order Compelling Personal Representative or Other Named Person to Account 13.34
      • 4. Opposition to Petition 13.35
      • 5. Form: Order Compelling Personal Representative or Other Named Person to Account 13.36
      • 6. Remedies if Personal Representative Fails to Comply With Order Compelling Personal Representative to Account 13.37
      • 7. Form: Petition for Issuance of Citation Requiring Personal Representative to Appear and Show Cause Why He or She Should Not Be Punished for Contempt 13.38
  • III. OBJECTIONS TO ACCOUNT AND REQUEST FOR SURCHARGE OF FIDUCIARY AND OTHER REMEDIES
    • A. Res Judicata Effect of Failure to Object 13.39
    • B. Standing to Object
      • 1. Trusts 13.40
      • 2. Estates 13.41
    • C. Scope of Objection
      • 1. Plenary Review of Fiduciary's Acts or Omissions 13.42
      • 2. Breach of Trustee's Duties 13.43
      • 3. Breach of Personal Representative's Duties 13.44
    • D. Measure of Liability for Breach of Duties
      • 1. Compensatory Damages 13.45
      • 2. Punitive Damages 13.46
    • E. Surcharge and Other Remedies 13.47
    • F. Attorney Fee Shifting
      • 1. Fees Incurred by Fiduciary 13.48
      • 2. Fees Incurred by Contestant 13.49
    • G. Procedure
      • 1. When to File Objections 13.50
      • 2. Content, Format, and Notice to Surety 13.51
    • H. Form: Objections to Account and Request for Surcharge of Fiduciary and Other Remedies 13.52
    • I. Hearing on Objections
      • 1. No Jury Trial 13.53
      • 2. Timing 13.54
      • 3. Evidence 13.55
      • 4. Burden of Proof 13.56
    • J. Order 13.57
    • K. Appeal
      • 1. Appealable Order 13.58
      • 2. Time to Appeal 13.59
    • L. Recovery Against Surety 13.60

14

Fiduciary Resignation or Removal

Thomas W. Latham

  • I. TRUSTEE RESIGNATION 14.1
    • A. Methods of Resignation 14.2
      • 1. By Terms of Trust 14.3
      • 2. By Consent of Holder of Power to Revoke 14.4
      • 3. By Consent of Certain Beneficiaries 14.5
      • 4. By Court Order When Trustee Needs to Invoke Statutory Right to Resign 14.6
        • a. Lack of Beneficiary Consent 14.7
        • b. No Successor Willing to Serve 14.8
        • c. Problems Involved With Exercising Right to Resign
          • (1) What to Do With Trust Assets 14.9
          • (2) Search for Successor Trustee or Receiver 14.10
          • (3) Termination When Search for Successor Trustee or Receiver Is Unsuccessful 14.11
          • (4) Liability for Bad Faith Exercise of Right to Resign 14.12
        • d. Form: Petition for Order Accepting Resignation of Trustee and for Appointment of Successor Trustee or Receiver 14.13
        • e. Form: Order Accepting Resignation of Trustee and for Appointment of Successor Trustee or Receiver 14.14
    • B. Obtaining Release or Discharge 14.15
      • 1. Court Accounting 14.16
      • 2. Private Accounting and Request for Release 14.17
      • 3. Private Accounting and Reliance on Statute of Limitations 14.18
      • 4. Warning Against Self-Help Holdback 14.19
    • C. Timing Resignation 14.20
  • II. TRUSTEE REMOVAL
    • A. Removal in Accordance With Trust Instrument 14.21
    • B. Removal by Court 14.22
      • 1. Grounds 14.23
        • a. Breach of Trust
          • (1) Removal Is Only One of Several Remedies 14.24
          • (2) Breach From Conflict of Interest 14.25
        • b. Trustee Insolvent or Unfit 14.26
        • c. Hostility Among Cotrustees That Impairs Administration 14.27
        • d. Sole Trustee Would Be Disqualified Person Under Prob C §21380(a) 14.28
        • e. Inability to Manage Financial Resources, Execute Duties of Office, or Resist Fraud or Undue Influence 14.28A
        • f. Other Good Cause
          • (1) Hostility Between Trustee and Beneficiary That Impairs Administration 14.29
          • (2) Transfer of Trust From One Corporate Fiduciary to Another 14.30
          • (3) Transfer of Irrevocable Trust to Trust Company on Request of Current Beneficiaries 14.31
      • 2. Attorney Fees
        • a. Successful Trustee 14.32
        • b. Unsuccessful Trustee 14.33
        • c. Successful Petitioner 14.34
        • d. Unsuccessful Petitioner 14.35
      • 3. Petition for Removal
        • a. Procedure 14.36
        • b. Form: Petition for Removal of Trustee 14.37
        • c. Form: Order for Removal of Trustee 14.38
  • III. REMOVAL OF PERSONAL REPRESENTATIVE
    • A. Statutory Grounds 14.39
    • B. Discretionary Removal Power 14.40
    • C. Suspension of Powers and Special Administration 14.41
    • D. Petition for Removal
      • 1. Procedure 14.42
      • 2. Form: Petition for Removal of Representative 14.43
      • 3. Form: Order for Issuance of Citation 14.44
      • 4. Form: Order Removing Representative 14.45

15

Actions by and Against Personal Representative

Thomas W. Latham

  • I. ROLE OF REPRESENTATIVE AS LITIGANT 15.1
    • A. Conflicts of Interest 15.2
    • B. Duty of Impartiality 15.3
    • C. Personal Representative Is Litigant on Behalf of Estate 15.4
    • D. Prior Court Approval to Engage in Litigation Not Required But Advisable 15.5
      • 1. Protection Against Hindsight Complaints 15.6
      • 2. Payment of Attorney Fees and Costs on Current Basis 15.7
  • II. SELECTED PROBATE ADMINISTRATION ISSUES
    • A. Disputes Concerning Bonds 15.8
    • B. Litigation Concerning Inventory and Appraisal
      • 1. Representative's Failure to File Inventory and Appraisal 15.9
      • 2. Challenges to Inventory 15.10
      • 3. Challenges to Appraisal 15.11
    • C. Disputes Involving Claims by Family Members, Putative Spouses, and Former Spouses 15.12
      • 1. Disputes Concerning Community/Separate Property 15.13
      • 2. Claims for Spouse's Breach of Fiduciary Duty 15.14
      • 3. Liability for Spousal Debts 15.15
    • D. Proration of Taxes 15.16
    • E. Surcharge of Personal Representative for Breach of Fiduciary Duties
      • 1. Negligence in Managing and Controlling Estate 15.17
      • 2. Negligence Concerning Payment of Taxes 15.18
    • F. Action Against Surety for Acts of Personal Representative 15.19
      • 1. Requirements: Notice and Surcharge Order 15.20
      • 2. Proceeding by Motion or Complaint 15.21
  • III. CLAIMS OF ESTATE AGAINST THIRD PARTIES 15.22
    • A. Standing to Pursue Claim 15.23
    • B. Statute of Limitations 15.24
    • C. Damage Limitations 15.25
    • D. Commencing or Continuing Action
      • 1. In General 15.26
      • 2. Form: Complaint in Action by Representative 15.27
  • IV. WRONGFUL DEATH CLAIMS 15.28
    • A. Joinder of Claims and Claimants 15.29
    • B. Statute of Limitations 15.30
  • V. CLAIMS OF THIRD PARTIES AGAINST ESTATE
    • A. Survival of Third Party Claims Against Decedent 15.31
    • B. Statute of Limitations 15.31A
    • C. Creditor Claim Procedures 15.32
    • D. Personal Representative as Defendant When No Action Pending at Death 15.33
    • E. Form: Complaint Against Representative When No Action Pending at Death 15.34
    • F. Personal Representative as Defendant When Action Pending at Death 15.35
    • G. Form: Notice of Motion and Motion for Order Substituting Personal Representative as Defendant and for Leave to File Supplemental Complaint 15.36
    • H. Claims That Do Not Require Creditor Claim 15.37
      • 1. Claims Covered by Insurance 15.38
      • 2. Liability of Distributee or Successor in Interest Under Limited Circumstances 15.39

16

Contesting Appointment of Personal Representative

Thomas W. Latham

  • I. DISPUTES CONCERNING APPOINTMENT OF PERSONAL REPRESENTATIVE
    • A. Strategy 16.1
    • B. Immediate Appointment of Special Administrator 16.2
    • C. Right to Appointment as Personal Representative 16.3
      • 1. Executors 16.4
      • 2. Administrators 16.5
      • 3. Administrators With Will Annexed 16.6
      • 4. Waiver of Right to Appointment 16.7
    • D. Grounds for Disqualification 16.8
      • 1. Minor 16.9
      • 2. Conservatee, or Person Otherwise Incapable or Unfit 16.10
      • 3. Persons Subject to Removal
        • a. In General 16.11
        • b. Conflict of Interest as Basis for Disqualification 16.12
      • 4. Nonresident of United States 16.13
      • 5. Decedent's Surviving Business Partner 16.14
      • 6. Homicide 16.15
      • 7. Abuse of Elder or Dependent Adult 16.16
    • E. Standing to Object 16.17
  • II. PROCEDURES AND FORMS
    • A. Petition for Appointment 16.18
    • B. Notice of Hearing 16.19
    • C. Contest of Petition 16.20
    • D. Memorandum in Support of Contest 16.21
    • E. Contested Hearing 16.22
    • F. Form: Contest of Appointment of Personal Representative 16.23
    • G. Form: Order Denying Petition for Appointment of Personal Representative 16.24
    • H. Appeal 16.25

17

Will Contests

Clark R. Byam

Marc L. Sallus

  • I. INTRODUCTION
    • A. Nature of Proceeding 17.1
    • B. Interview and Fact-Gathering 17.2
    • C. Checklist: Client Information 17.3
    • D. Evaluating Costs of Contest 17.4
  • II. LEGAL REQUIREMENTS
    • A. Governing Law 17.5
    • B. Standing to Contest 17.6
      • 1. Personal Representative
        • a. Proposed Executor Under Will Offered for Probate 17.7
        • b. Contest of Subsequent Will 17.8
      • 2. Heirs 17.9
      • 3. Beneficiaries Under Prior or Later Will 17.10
      • 4. Estate of Person Interested 17.11
      • 5. Assignment of Right to Contest 17.12
      • 6. Creditors of Heirs 17.13
      • 7. Debtors of Estate 17.14
      • 8. State of California 17.15
      • 9. Public Administrator 17.16
    • C. Limitation on Right to Revoke Probate 17.17
    • D. Methods of Contest 17.18
      • 1. Advantages of Preprobate Versus Postprobate Contests 17.19
      • 2. Jurisdiction 17.20
      • 3. Fraud or Misrepresentation 17.21
      • 4. Probate of Another Will 17.22
      • 5. Persons Under Disability 17.23
      • 6. Will Contest or Action Based on Invalidity of Transfer Described in Prob C §21380 17.24
    • E. Grounds for Direct Contest 17.25
      • 1. Validity of Will; Burden of Proof 17.26
      • 2. Compliance With Legal Requirements: Due Execution 17.27
        • a. Before Probate 17.28
        • b. After Admission to Probate 17.29
        • c. Proof of Due Execution
          • (1) Testimony of Subscribing Witnesses 17.30
          • (2) Questioned Handwriting 17.31
          • (3) Punctuation 17.32
      • 3. Lack of Testamentary Intent 17.33
      • 4. Revocation 17.34
  • III. OTHER REMEDIES
    • A. Actions Without Contest 17.35
    • B. Declaratory Relief Actions Under Law Applicable to Instruments That Became Irrevocable Before January 1, 2001
      • 1. Authority to Use Declaratory Relief 17.36
      • 2. Proper Court to Bring Declaratory Action 17.37
      • 3. Notice Requirements 17.38
      • 4. Form: Sample Application for Determination Under Former Prob C §§21320–21322 17.39
      • 5. Tolling of Statute of Limitations 17.40
    • C. Determination of Ownership in Spousal and Putative Spousal Arrangements 17.41
    • D. Actions on Contract to Make Wills
      • 1. Requirements of Contract to Make Will 17.42
      • 2. Breach of Agreement 17.42A
        • a. Oral Agreements
          • (1) Equitable Estoppel 17.43
          • (2) Burden of Proof 17.44
        • b. Enforcement by Third-Party Beneficiaries 17.45
        • c. Statute of Limitations 17.46
        • d. Effect on Probate Proceedings 17.47
        • e. Superior Equities 17.48
      • 3. Personal Service Contracts
        • a. Action in Quantum Meruit 17.49
        • b. Tax Liability 17.50
        • c. Action for Quasi-Specific Performance 17.51
    • E. Prenuptial Agreement 17.52
    • F. Marvin Agreement 17.53
    • G. Action Against Drafter
      • 1. Attorney's Malpractice Liability 17.54
        • a. Duty of Care 17.54A
        • b. Standard of Care 17.54B
        • c. Causation and Damages 17.54C
      • 2. Lay Person as Drafter 17.55
  • IV. CONTEST BEFORE PROBATE
    • A. Contestant's Pleadings 17.56
      • 1. Required Allegations 17.57
      • 2. Issuance and Service of Summons 17.58
      • 3. Form: Objection to Probate of Will 17.59
      • 4. Form: Sample Allegation of Undue Influence 17.60
      • 5. Form: Verification by Declaration 17.61
      • 6. Form: Summons (Probate) (Judicial Council Form DE125) 17.62
    • B. Diligent Prosecution and Proponent's Order to Show Cause 17.63
    • C. Responsive Pleading 17.64
      • 1. Preparing Demurrer 17.65
      • 2. Service of Answer or Demurrer 17.66
      • 3. Time to Amend or Answer After Ruling on Demurrer 17.67
      • 4. Form: Notice of Hearing on Demurrer to Objection to Probate of Will 17.68
      • 5. Form: Demurrer to Objection to Probate of Will 17.69
      • 6. Form: Notice of Ruling on Demurrer 17.70
      • 7. Form: Answer to Objection to Probate of Will 17.71
  • V. CONTEST AFTER PROBATE
    • A. Time for Filing Petition for Revocation 17.72
    • B. Parties 17.73
    • C. Form: Petition for Revocation of Probate of Purported Will 17.74
    • D. Service of Summons 17.75
    • E. Demurrer; Answer 17.76
  • VI. PRETRIAL AND TRIAL PROCEDURES
    • A. Motions 17.77
    • B. Trial Procedure 17.78
    • C. Trial by Court; Order of Proof 17.79
    • D. Statement of Decision 17.80
    • E. Judgment and Orders 17.81
    • F. Costs
      • 1. Statutory Authority for Payment 17.82
      • 2. Obtaining Costs 17.83
  • VII. COMPROMISE AND SETTLEMENT 17.84
    • A. Settlement Procedures in Will Contests 17.85
    • B. Settlement Agreement
      • 1. Contents of Settlement Agreement 17.86
      • 2. Form: General Release and Release of Rights 17.87
    • C. Compensation of Attorney 17.88
    • D. Court Approval of Settlement 17.89
      • 1. Form: Petition for Approval of Will Contest Settlement Agreement 17.90
      • 2. Form: Order Approving Will Contest Settlement Agreement 17.91
    • E. Effect of Compromise 17.92
  • VIII. INTERVENTION 17.93
  • IX. APPEAL
    • A. Scope of Review 17.94
    • B. Review of Evidence 17.95

18

Proceedings to Determine Entitlement to Estate Distribution

Charles P. Wolff

  • I. OVERVIEW 18.1
  • II. APPLICABILITY OF PROB C §11700 PROCEEDING
    • A. Broad Scope of Statute 18.2
    • B. Examples of Use of Prob C §11700 Proceedings 18.3
    • C. Limits on Use of Procedure 18.4
  • III. WHO MAY PETITION 18.5
    • A. Personal Representative 18.6
    • B. Beneficiaries or Persons Otherwise Entitled to Distribution 18.7
    • C. Persons Who Do Not Have Standing to Petition 18.8
  • IV. TIME FOR FILING 18.9
  • V. PROCEDURE
    • A. Local Rules 18.10
    • B. Petitioner: File Petition and Obtain Hearing Date
      • 1. Content of Petition 18.11
      • 2. Form: Petition for Determination of Entitlement to Estate Distribution 18.12
      • 3. Assignment of Hearing Date 18.13
      • 4. Serve Notice 18.14
    • C. Respondent: File Statement of Interest in Estate
      • 1. Who May File; Content 18.15
      • 2. Practical Considerations 18.16
      • 3. Contents of Statement of Interest 18.16A
      • 4. Form: Statement of Interest 18.17
    • D. The Hearing: An Overview 18.18
      • 1. When to Seek Evidentiary Hearing: Strategic Considerations 18.19
      • 2. Evidence: Rules of Civil Procedure Apply 18.20
  • VI. PROVING CLAIMS UNDER PROB C §11700 18.21
    • A. Litigating Entitlement Claim Based on Will 18.22
      • 1. Testator's Words Versus Testator's Intent 18.23
      • 2. Statutory Rules of Construction of Language in Instrument 18.24
      • 3. Some Applicable Rules of Evidence 18.25
      • 4. Proceedings in Absence of Extrinsic Evidence 18.26
      • 5. Extrinsic Evidence 18.27
        • a. Use of Extrinsic Evidence to Resolve Ambiguities 18.28
        • b. Procedure for Determining Admissibility of Extrinsic Evidence 18.29
        • c. Issues on Which Extrinsic Evidence Has Been Admitted 18.30
        • d. Strategic Concerns Involving Use of Extrinsic Evidence 18.31
      • 6. Reformation 18.31A
    • B. Litigating Entitlement Claim Not Based on Will 18.32
      • 1. Intestacy Rights of Heirs of Predeceased Spouse or Domestic Partner 18.33
      • 2. Intestacy Rights of Omitted Spouse, Domestic Partner, or Child 18.34
      • 3. Intestacy Rights of Remote Relatives 18.34A
      • 4. Proof of Issues
        • a. Issues Involving Relationship to Decedent or Predeceased Spouse or Domestic Partner
          • (1) Spouse or Domestic Partner 18.35
          • (2) Putative Spouse
            • (a) Extent of Rights 18.36
            • (b) Issues of Proof 18.37
          • (3) Effect of Annulment, Dissolution, Separation, or Termination of Domestic Partnership 18.38
          • (4) Child 18.39
          • (5) Adoptee 18.40
        • b. Issues Involving Characterization of Property at Issue 18.41
          • (1) General Characterization Rules 18.42
          • (2) Tracing 18.43
          • (3) Rents, Issues, and Profits—Pereira/Van Camp 18.44
          • (4) Transmutation 18.45
          • (5) Effect of ERISA on Community Property Determinations 18.46
  • VII. ORDER DETERMINING ENTITLEMENT
    • A. Order 18.47
    • B. Form: Order Determining Entitlement to Estate Distribution 18.48
  • VIII. ATTORNEY FEES AND COSTS 18.49
  • IX. EFFECT OF ORDER 18.50
  • X. CHALLENGING ORDER
    • A. Appeal 18.51
    • B. Relief Based on Mistake, Inadvertence, Surprise, or Excusable Neglect 18.52
    • C. Relief Based on Extrinsic Fraud 18.53

19

Resolving Disputed Property Claims

Maria I. Lawless

  • I. JURISDICTION
    • A. Historical Development of Probate Court Jurisdiction 19.1
    • B. Scope of Prob C §850(a)(2) Jurisdiction 19.2
    • C. Concurrent Jurisdiction 19.3
    • D. Tactical Considerations Arising From Concurrent Jurisdiction 19.3A
  • II. EXAMPLES OF PROPERTY CLAIMS THAT CAN BE TRIED IN PROBATE PROCEEDINGS 19.4
  • III. GENERAL CONSIDERATIONS
    • A. Statutes of Limitation 19.5
    • B. Impact of No-Contest Clauses 19.6
    • C. Civil Litigation as Alternative [Deleted] 19.7
    • D. Summary Determination 19.8
    • E. Lis Pendens 19.9
  • IV. PROCEDURE
    • A. Time and Notice 19.10
    • B. Response to Prob C §850 Petition 19.11
  • V. TRIAL 19.12
  • VI. ORDER AND APPEAL 19.13
  • VII. FORMS
    • A. Form: Petition by Third Party Claimant to Determine Ownership of Estate Property 19.14
    • B. Form: Order Determining Ownership of Estate Property and Transferring Property to Claimant 19.15
    • C. Form: Petition by Personal Representative to Establish Estate's Ownership of Property 19.16
    • D. Form: Order Establishing Estate's Ownership of Property and Directing Transfer 19.17
    • E. Form: Objections to Petition by Personal Representative to Determine Ownership of Estate Property 19.18

20

Trust Contests

James A. Barringer

Noël M. Lawrence

  • I. INTRODUCTION: SIMILARITY TO WILL CONTESTS; NO-CONTEST CLAUSES 20.1
  • II. GROUNDS FOR ATTACK
    • A. Lack of Capacity and Similar Issues 20.2
    • B. Failure to Fund 20.3
    • C. Interpretation of Terms of Trust 20.4
  • III. WHO MAY ATTACK
    • A. Parties 20.5
    • B. Standing 20.6
    • C. Guardian Ad Litem 20.7
      • 1. Virtual or Class Representation 20.8
      • 2. Adequacy of Representation 20.9
      • 3. Form: Petition for Appointment of Guardian Ad Litem—Probate (Judicial Council Form DE350/GC100) 20.10
      • 4. Form: Order Appointing Guardian Ad Litem—Probate (Judicial Council Form DE351/GC101) 20.11
  • IV. STATUTE OF LIMITATIONS
    • A. After Notification by Trustee 20.12
    • B. Statute of Limitations When Trustee Notification Not Given 20.13
      • 1. When Action Based on Trustor Incapacity 20.14
      • 2. When Action Based on Fraud, Mistake, or Imposition of Constructive Trust 20.15
      • 3. When Statute May Be Stayed 20.16
    • C. Transfers to Drafters and Other Disqualified Persons 20.17
    • D. Laches 20.18
  • V. FORM OF CHALLENGE
    • A. Forum 20.18A
      • 1. Civil Action 20.19
      • 2. Probate Department Proceedings Under Trust Law 20.20
    • B. Proceedings Under Trust Law
      • 1. Contents of Petition 20.21
      • 2. Notice of Petition 20.22
      • 3. Court's Powers Under Trust Law 20.23
    • C. Equitable Remedies 20.24
      • 1. Constructive Trusts 20.25
      • 2. Reformation 20.26
        • a. Who May Seek 20.27
        • b. Grounds for Reformation 20.28
        • c. Use of Extrinsic Evidence 20.29
      • 3. Rescission 20.30
    • D. Pleadings
      • 1. Form: Petition to Determine Validity of Purported Trust and for Imposition of Constructive Trust 20.31
      • 2. Form: Petition by Beneficiary to Determine Validity of Trust Provision 20.32

21

Breach of Trust

Andrew Zabronsky

  • I. GROUNDS FOR BREACH OF TRUST
    • A. Breach of Trust Defined 21.1
    • B. Duty to Comply With Trust Terms 21.2
      • 1. Duty to Review Trust Terms 21.3
      • 2. Change in Circumstances 21.4
      • 3. Directing Power 21.5
    • C. Breach of Other Fiduciary Duties 21.6
      • 1. Duty of Loyalty 21.7
        • a. Breach by Pressuring Beneficiary 21.8
        • b. Breach by Secret Profits 21.9
      • 2. Duty to Avoid Conflicts of Interest 21.10
        • a. Self-Dealing 21.11
          • (1) Self-Deposits 21.12
          • (2) Loans From Trustee to Trust 21.13
          • (3) Loans to Purchaser of Trust Assets 21.14
          • (4) Other Kinds of Self-Dealing 21.15
        • b. Conflicting Personal Interests 21.16
        • c. Conflicting Duties 21.17
      • 3. Duty of Impartiality 21.18
      • 4. Duty of Disclosure 21.19
      • 5. Duty Not to Delegate 21.20
      • 6. Duty to Keep Trust Assets Separate 21.21
      • 7. Duty to Enforce or Defend Claims 21.22
        • a. Duty to Enforce Claims Against Predecessor Trustee 21.23
          • (1) Predecessor Trustee Must Give All Trust Assets to Successor 21.24
          • (2) Breach of Trust by Predecessor Trustee 21.25
        • b. Duty to Enforce Claims Against Cotrustee 21.26
    • D. Aiding or Abetting Breach of Trust 21.26A
  • II. STANDARD OF CARE
    • A. Prudent Trustee Rule
      • 1. Standard of Care 21.27
      • 2. Illustrations of Rule 21.28
      • 3. More Stringent Standard for Expert Trustee 21.29
      • 4. Standard May Be Altered by Trustor 21.30
    • B. Prudent Investor Rule
      • 1. Uniform Prudent Investor Act 21.31
      • 2. Compliance With Act
        • a. Requirement of Reasonable Skill, Care, and Caution 21.32
        • b. Requirement of Initial Review 21.33
        • c. Exception to Rule When Trust Terms Control 21.34
      • 3. Duties Under Act
        • a. Failure to Invest 21.35
        • b. Failure to Diversify 21.36
        • c. Failure to Investigate 21.37
        • d. Improper Delegation 21.38
        • e. Retention of Investments 21.39
    • C. Discretionary Acts
      • 1. Ordinary Discretion 21.40
      • 2. Absolute Discretion
        • a. Absolute Discretion Not Reviewable for Reasonableness 21.41
          • (1) Fiduciary Principles 21.42
          • (2) Good Faith 21.43
          • (3) Purposes of Trust 21.44
        • b. Absolute Discretion Strictly Construed 21.45
      • 3. Absolute Discretion When Trustee Is Also Beneficiary 21.46
  • III. BENEFICIARY'S STANDING TO BRING SUIT
    • A. Against Trustee 21.46A
    • B. Against Third Parties 21.46B
  • IV. EVIDENCE
    • A. Burden of Proof
      • 1. Beneficiary Has Initial Burden 21.47
      • 2. When Trustee Obtains Advantage 21.48
    • B. Expert Testimony 21.49
    • C. Presumption Arising From Failure to Maintain Records 21.50
    • D. Attorney-Client Privilege 21.50A
  • V. TRUSTEE'S LIABILITY FOR ACTS OF OTHERS
    • A. Acts of Agents 21.51
    • B. Acts of Cotrustees 21.52
  • VI. TRUSTEE'S DEFENSES
    • A. Exculpatory Clauses 21.53
    • B. Consent or Affirmance of Beneficiaries 21.54
    • C. Discharge by Release or Contract 21.55
    • D. Statute of Limitations
      • 1. Three Years After Written Report or Discovery 21.56
      • 2. Three Years After Discovery [Deleted] 21.57
      • 3. Tolling 21.58
    • E. Laches 21.59
    • F. Res Judicata and Collateral Estoppel 21.60
      • 1. Narrow Application of Doctrines 21.61
      • 2. Extrinsic Fraud Exception 21.62
  • VII. REMEDIES
    • A. Remedies Available 21.63
    • B. Damages 21.64
      • 1. Requirement of Causation 21.65
      • 2. Measure of Damages
        • a. Loss Plus Interest 21.66
        • b. Disgorgement of Profit Plus Interest 21.66A
        • c. Appreciation Damages 21.67
        • d. Offsetting Gains Against Losses 21.68
    • C. Punitive Damages
      • 1. Availability 21.69
      • 2. Requirement of Actual Damages 21.70
    • D. Denial of Compensation 21.71
    • E. Attorney Fees
      • 1. Attorney Fees for Beneficiary
        • a. From Trustee
          • (1) Generally Unavailable 21.72
          • (2) Bad Faith Defense of Contest to Account 21.73
        • b. From Trust
          • (1) Common Fund Theory 21.74
          • (2) Based on Settlor's Intent 21.75
      • 2. Attorney Fees for Trustee
        • a. Successful Defense 21.76
        • b. Unsuccessful Defense 21.77
        • c. Mixed Success 21.78
    • F. Form: Petition for Relief From Breach of Trust 21.79

22

Actions by and Against Trustee

Richard M. Bryan

Caroline K. Hinshaw

  • I. POWER AND DUTY OF TRUSTEE TO PROSECUTE AND DEFEND ACTIONS
    • A. Power of Trustee 22.1
    • B. Duty of Trustee 22.2
      • 1. Trustee's Duty to Pursue Claims 22.3
        • a. Limitations on Duty to Pursue Claim 22.4
        • b. Document Reasons for Decision 22.5
      • 2. Trustee's Duty to Respond to Claims 22.6
        • a. Consult Trust Instrument 22.7
        • b. Trustee's Petition for Instructions 22.8
        • c. Beneficiaries' Petition to Compel Trustee to Defend 22.9
  • II. ACTIONS BY TRUSTEE AGAINST THIRD PERSONS
    • A. Standing of Trustee 22.10
    • B. Probate Court Concurrent Jurisdiction 22.11
    • C. Action to Recover Trust Assets 22.12
  • III. ACTIONS BY THIRD PERSONS AGAINST TRUST
    • A. Trustee as Party Defendant 22.13
    • B. Jurisdiction Over Trust 22.14
    • C. Forms of Civil Action 22.15
    • D. Petition Under Probate Code 22.16
      • 1. Advantages of Petition 22.17
      • 2. No Jury Trial 22.18
      • 3. Form: Petition for Order Determining Interest in Property 22.19
      • 4. Notice of Hearing 22.20
  • IV. COSTS 22.21
  • V. LIABILITY OF TRUST PROPERTY VERSUS TRUSTEE'S PERSONAL LIABILITY
    • A. Trustee Generally Not Liable 22.22
      • 1. Contracts 22.23
      • 2. Torts 22.24
      • 3. Property Ownership 22.25
      • 4. Negotiable Instruments 22.26
    • B. Liability of Dissenting Cotrustee 22.27
    • C. Proceeding to Determine Liability as Between Trust and Trustee 22.28
  • VI. STATUTORY PROTECTION OF THIRD PERSONS 22.29
    • A. Assumption of Trustee's Authority 22.30
    • B. Trustee's Application of Property 22.31
    • C. Transaction With Former Trustee 22.32
    • D. Trust Omitted From Grant 22.33
    • E. Beneficiary Undisclosed 22.34
    • F. Trust Certification 22.35
  • VII. CLAIMS OF SETTLOR'S CREDITORS
    • A. Liability of Trust Estate During Settlor's Lifetime
      • 1. Revocable Trust 22.36
        • a. Civil Action 22.37
        • b. Petition Under Probate Code 22.38
        • c. Other "Settlors" 22.39
      • 2. Irrevocable Trust 22.40
        • a. Spendthrift Provisions Invalid 22.41
        • b. Enforcement of Money Judgments 22.42
        • c. Fraudulent Transfers 22.43
    • B. Liability of Trust Estate After Settlor's Death
      • 1. Probate Estate Must Be Exhausted 22.44
      • 2. Creditor Claim Required Against Estate 22.45
        • a. Time for Filing Creditor Claim 22.46
        • b. Action on Rejected Estate Claim 22.47
        • c. Liability of Distributees of Estate 22.48
      • 3. Discretionary Trust Claims Procedure 22.49
        • a. Action on Rejected Trust Claim 22.50
        • b. Action Against Trustee When No Probate Estate and No Claims Procedure Initiated 22.51
        • c. Action Against Distributees of Trust 22.52
    • C. Liability of Trustee for Distribution 22.52A
  • VIII. CLAIMS OF BENEFICIARIES' CREDITORS
    • A. Execution on Spendthrift Trusts and Education or Support Trusts; Discretionary Payments 22.53
    • B. Procedure for Enforcement of Money Judgment 22.54
    • C. Form: Petition for Enforcement of Money Judgment 22.55

23

Appeals

Matthew P. Matiasevich

  • I. INTRODUCTION 23.1
  • II. CONSIDERATIONS AT THE UNDERLYING HEARING
    • A. Plan Ahead 23.2
    • B. Identify the Issues 23.3
    • C. Preserve Objections 23.4
    • D. Memorialize Court's Ruling 23.5
  • III. CONSIDERATIONS FOR THE FIDUCIARY
    • A. Duty to Appeal 23.6
    • B. Duty to Defend 23.7
    • C. Liability for Relying on Order Before It Is Final 23.8
  • IV. OVERVIEW OF APPELLATE PROCEDURE
    • A. Appealable Orders 23.9
    • B. Standing to Appeal 23.10
    • C. Filing Timely Notice of Appeal 23.11
      • 1. Form: Notice of Appeal (Superior Court) 23.12
      • 2. Filing Fees 23.13
      • 3. Effect of Posttrial Motions 23.14
    • D. Designating the Record 23.15
      • 1. Form: Notice to Prepare Reporter's Transcript (Appeal From Superior Court) 23.16
      • 2. Form: Notice to Prepare Clerk's Transcript 23.17
      • 3. Form: Request for Correction of Transcript 23.18
      • 4. Form: Notice of Election to Proceed by Appendix in Lieu of Clerk's Transcript 23.19
      • 5. Form: Stipulation Designating Contents of Joint Appendix 23.20
      • 6. Form: Preliminary Stipulation on Attempt to Prepare Agreed Statement (Cal Rules of Ct 8.134) 23.21
    • E. Briefs, Calendar Preference, and Oral Argument 23.22
    • F. Resolution
      • 1. Opinion and Remittitur 23.23
      • 2. Petition for Rehearing 23.24
      • 3. Petition for Review 23.25
    • G. Attorney Fees on Appeal 23.26
    • H. Costs 23.27
  • V. THE STAY OF ENFORCEMENT
    • A. The Automatic Stay 23.28
    • B. Exceptions to the Automatic Stay
      • 1. To Prevent Injury During Pendency of Appeal 23.29
      • 2. Court Can Require a Bond 23.30
      • 3. Money Judgments or Orders Directing Payment of Money 23.31
  • VI. STANDARDS OF REVIEW
    • A. Importance in the Appellate Process 23.32
    • B. De Novo Review 23.33
    • C. Substantial Evidence 23.34
    • D. Mixed Questions of Law and Fact 23.35
    • E. Abuse Of Discretion 23.36

 

CALIFORNIA TRUST AND PROBATE LITIGATION

(1st Edition)

March 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH03

Chapter 3

Attorney-Client Relations

03-042

§3.42

FORM: VARIABLE CONTINGENCY FEE AGREEMENT—WILL AND TRUST CONTEST

CH06A

Chapter 6A

Statutorily Disqualified Donees and Trustees

06A-019

§6A.19

Certificate of Independent Review Under Prob C §21384

06A-031

§6A.31

FORM: WILL CONTEST AND GROUNDS FOR OPPOSITION TO PROBATE OF PURPORTED WILL UNDER PROB C §21380

06A-035

§6A.35

Certificate of Independent Review

06A-039

§6A.39

Petition for Removal of Trustee

CH08

Chapter 8

Remedies Under Elder Abuse Provisions

08-027

§8.27

Allegations of Abuse Showing Applicability of EADACPA Remedies

CH10

Chapter 10

Litigation Tools: An Overview

10-006

§10.6

Sample Caption

10-035

§10.35

Petition for Issuance of Citation Requiring Citee to Appear and Account for Estate Property

10-036

§10.36

Declaration Supporting Petition for Issuance of Citation

10-095

§10.95

Sample Special Interrogatories in Will Contest Proceeding

10-096

§10.96

Sample Requests for Admission in Will Contest Proceeding

10-097

§10.97

Sample Request for Production in Will Contest Proceeding

CH11A

Chapter 11A

Negotiating and Drafting Settlement Agreements

11A-031

§11A.31

Agreement Regarding Tax Consequences

11A-032

§11A.32

Exclusion of Specific Clause

11A-033

§11A.33

Agreement Admissible as Evidence

11A-035

§11A.35

General Release

11A-036

§11A.36

Dismissal of Pending Cases

11A-038

§11A.38

Payment of Each Party’s Legal Fees

11A-039

§11A.39

Disclaimer of Liability

11A-040

§11A.40

Liquidated Damages and Venue

11A-041

§11A.41

Disclosure Acknowledgment

11A-043

§11A.43

Comprehension of Agreement

11A-044

§11A.44

Opportunity to Be Represented by Counsel

11A-045

§11A.45

Integration of Agreement

11A-046

§11A.46

Governing Law

11A-047

§11A.47

Interpretation of Agreement

11A-048

§11A.48

Further Documents

11A-050

§11A.50

Warranty of Capacity to Execute Agreement

11A-051

§11A.51

Authorization to Sign

11A-052

§11A.52

Attorney Fees for Enforcement Proceedings

11A-054

§11A.54

Severability

11A-055

§11A.55

Disputes to Be Mediated

11A-057

§11A.57

Agreement Is Binding on Successors

11A-058

§11A.58

Counterparts

11A-060

§11A.60

APPENDIX: SAMPLE MUTUAL GENERAL RELEASE AND SETTLEMENT AGREEMENT

CH13

Chapter 13

Accountings and Surcharge

13-021

§13.21

Petition to Compel Trustee to Account

13-023

§13.23

Order Compelling Trustee to Account

13-034

§13.34

Petition for Order Compelling Personal Representative or Other Named Person to Account

13-036

§13.36

Order Compelling Personal Representative or Other Named Person to Account

13-038

§13.38

Petition for Issuance of Citation Requiring Personal Representative to Appear and Show Cause Why He or She Should Not Be Punished for Contempt

13-052

§13.52

Objections to Account and Request for Surcharge of Fiduciary and Other Remedies

CH14

Chapter 14

Fiduciary Resignation or Removal

14-013

§14.13

Petition for Order Accepting Resignation of Trustee and for Appointment of Successor Trustee or Receiver

14-014

§14.14

Order Accepting Resignation of Trustee and for Appointment of Successor Trustee or Receiver

14-037

§14.37

Petition for Removal of Trustee

14-038

§14.38

Order for Removal of Trustee

14-043

§14.43

Petition for Removal of Representative

14-044

§14.44

Order for Issuance of Citation

14-045

§14.45

Order Removing Representative

CH15

Chapter 15

Actions by and Against Personal Representative

15-027

§15.27

Complaint in Action by Representative

15-034

§15.34

Complaint Against Representative When No Action Pending at Death

15-036

§15.36

Notice of Motion and Motion for Order Substituting Personal Representative as Defendant and for Leave to File Supplemental Complaint

CH16

Chapter 16

Contesting Appointment of Personal Representative

16-023

§16.23

Contest of Appointment of Personal Representative

16-024

§16.24

Order Denying Petition for Appointment of Personal Representative

CH17

Chapter 17

Will Contests

17-003

§17.3

Checklist: Client Information

17-039

§17.39

Sample Application for Determination Under Former Prob C §§21320–21322

17-059

§17.59

Objection to Probate of Will

17-060

§17.60

Sample Allegation of Undue Influence

17-061

§17.61

Verification by Declaration

17-068

§17.68

Notice of Hearing on Demurrer to Objection to Probate of Will

17-069

§17.69

Demurrer to Objection to Probate of Will

17-070

§17.70

Notice of Ruling on Demurrer

17-071

§17.71

Answer to Objection to Probate of Will

17-074

§17.74

Petition for Revocation of Probate of Purported Will

17-087

§17.87

General Release and Release of Rights

17-090

§17.90

Petition for Approval of Will Contest Settlement Agreement

17-091

§17.91

Order Approving Will Contest Settlement Agreement

CH18

Chapter 18

Proceedings to Determine Entitlement to Estate Distribution

18-012

§18.12

Petition for Determination of Entitlement to Estate Distribution

18-017

§18.17

Statement of Interest

18-048

§18.48

Order Determining Entitlement to Estate Distribution

CH19

Chapter 19

Resolving Disputed Property Claims

19-014

§19.14

Petition by Third Party Claimant to Determine Ownership of Estate Property

19-015

§19.15

Order Determining Ownership of Estate Property and Transferring Property to Claimant

19-016

§19.16

Petition by Personal Representative to Establish Estate’s Ownership of Property

19-017

§19.17

Order Establishing Estate’s Ownership of Property and Directing Transfer

19-018

§19.18

Objections to Petition by Personal Representative to Determine Ownership of Estate Property

CH20

Chapter 20

Trust Contests

20-031

§20.31

Petition to Determine Validity of Purported Trust and for Imposition of Constructive Trust

20-032

§20.32

Petition by Beneficiary to Determine Validity of Trust Provision

CH21

Chapter 21

Breach of Trust

21-079

§21.79

Petition for Relief From Breach of Trust

CH22

Chapter 22

Actions by and Against Trustee

22-019

§22.19

Petition for Order Determining Interest in Property

22-055

§22.55

Petition for Enforcement of Money Judgment

CH23

Chapter 23

Appeals

23-012

§23.12

Notice of Appeal (Superior Court)

23-016

§23.16

Notice to Prepare Reporter’s Transcript (Appeal From Superior Court)

23-017

§23.17

Notice to Prepare Clerk’s Transcript

23-018

§23.18

Request for Correction of Transcript

23-019

§23.19

Notice of Election to Proceed by Appendix in Lieu of Clerk’s Transcript

23-020

§23.20

Stipulation Designating Contents of Joint Appendix

23-021

§23.21

Preliminary Stipulation on Attempt to Prepare Agreed Statement (Cal Rules of Ct 8.134)

 

Selected Developments

March 2017 Update

A beneficiary's standing to request an accounting for the period prior to a settlor's death, when the trust became irrevocable, does not extend to cases in which the beneficiary has not alleged that the settlor was incapacitated, incompetent, or subject to undue influence before settlor's death nor was the victim of fraud, breach of fiduciary duty, or other misconduct of a third party trustee. Babbitt v Superior Court (2016) 246 CA4th 1135. See §4.6.

The court in Doolittle v Exch. Bank addressed the issue of whether certain provisions allowing a trustee to use trust assets to defend against trust contest are enforceable. The language in the provisions was similar to language in Drafting California Revocable Trusts §19.5 (4th ed Cal CEB) and California Will Drafting §35.10 (3d ed Cal CEB), which the court held allowed the trustee to defend against trust contests. Doolittle v Exch. Bank (2015) 241 CA4th 529. See §§4.17J, 21.22, and 22.6.

Beneficiaries wary of triggering a no-contest clause should take heart in the court's decision in Estate of Dayan. There the court held that a beneficiary's assertion of ownership of property referenced in a will did not violate no-contest clause, because beneficiary sought only to enforce his rights under quitclaim deed, not to directly contest will. Estate of Dayan (2016) 5 CA5th 29. See §5.8.

The court in Funsten v Wells Fargo, N.A. (2016) 2 CA5th 959 may have further complicated the issue of whether the safe-harbor procedure (i.e., for declaratory relief on the issue of whether a proposed filing would violate a no-contest clause) at former Prob C §§21320–21322 still may be invoked by beneficiaries petitioning for declaratory relief after January 1, 2010, but for trusts that became irrevocable before January 1, 2001. The Funsten court held that the beneficiary could not petition for declaratory relief with regard to a trust that became irrevocable in 1994, because the beneficiary filed his declaratory-relief petition after the repeal of former Prob C §§21320–21322 in January 2010. While Funsten seems inconsistent with the statutory changes indicating that the safe-harbor procedure is still available for instruments that became irrevocable before January 1, 2001, until an appellate decision comes out with a different holding, the safe harbor provision is in jeopardy. See §5.16, 17.36–17.40.

In Butler v LeBouef (2016) 248 CA4th 198, the court held that substantial evidence established that the alleged prohibited transferee drafted or transcribed the instrument in question. See §6A.10.

For those practitioners who do not look favorably on arbitration clauses, the court of appeal, at least in one case, supports the same view. In a case involving a wrongful death claim under CCP §377.60, even though the decedent's personal representative signed the arbitration agreement as the decedent's attorney-in-fact, she was not obligated to arbitrate the claim, because the wrongful death claim belonged to the survivors and not the decedent. Monschke v Timber Ridge Assisted Living, Inc. (2016) 244 CA4th 583. See §§8.17 and 15.28.

With regard to compelling an account for the period when the trust was revocable, the practitioner should note that Evangelho v Presoto (1998) 67 CA4th 615 dealt with a third party trustee, i.e., the settlor did not serve as a trustee when the trust could be revoked. When this is not the case and the surviving settlor was the co-trustee of a revocable trust that he or she created with a spouse, and at least part of that trust has become irrevocable by virtue of the other settlor's death, the surviving settlor/co-trustee should not have to account for the period when the entire trust was revocable in the absence of a claim that the deceased settlor was incapacitated or subject to undue influence during that period. Babbitt v Superior Court (2016) 246 CA4th 1135. Babbitt concerned a beneficiary's ability to compel an account for the period of revocability with regard to this type of trust, and thus it appears that Babbitt's discussion of the trustee's duty of disclosure was superfluous and hence dicta, particularly since the complaining party in Babbitt appears to have petitioned only for an account rather than for specific information or access to the trust's financial records. The trustee's duty to account and duty to disclose are codified separately and are not synonymous. See §13.2.

The double damages under Prob C §859 are not punitive damages and may be recovered from a successor in probate proceeding after the respondent's death. Hill v Superior Court (2016) 244 CA4th 1281. See §13.46.

In a "failure to fund" case involving real property and an irrevocable trust, the Carne v Worthington (2016) 246 CA4th 548 court held that a settlor conveyed real property to the trustee of his irrevocable trust by using the trust instrument and thus was not required to execute a separate deed. The court did note, however, that the transfer by unrecorded trust instrument might not be effective vis-a-vis strangers. See §20.3.

On the question of tolling the statute of limitations for legal malpractice claims, the Kelly v Orr (2016) 243 CA4th 940 court held that the tolling provision of CCP §340.6(a)(2) applies for the benefit of a successor trustee, and hence the statute of limitations for the successor trustee is tolled while the attorney was providing continuous representation to the predecessor trustee. See §22.10.

In a case that made headlines because it involved the sale of the Los Angeles Clippers basketball team, the probate court demonstrated the power of Prob C §1310(b) by allowing the sale of a very specific irreplaceable asset to go forward pending appeal. Sterling v Sterling (2015) 242 CA4th 185 (trustee directed to complete the sale of an asset notwithstanding appeal when the trust faced substantial monetary loss unless the sale was carried out). See §23.29.

About the Authors

DAVID W. BAER is a partner in the San Francisco/Marin County firm of Hanson, Bridgett, Marcus, Vlahos, Rudy LLP, where he has practiced since 1982. He specializes in trust and probate litigation at both the trial and appellate levels. Mr. Baer received his B.A. in 1978 from Reed College and his J.D. in 1981 from the University of California, Hastings College of the Law, where he was a member of the Thurston Society and the Order of the Coif. Mr. Baer has been a speaker on trust and probate litigation issues to diverse audiences, including trust officers, litigators, and estate planning attorneys. He is a member of the Litigation, Alternative Dispute Resolution, and Probate and Trust Law Sections of the Bar Association of San Francisco and the Estate, Trust, and Probate Law and Mediation sections of the Marin County Bar Association. His reported cases include Sutton v Golden Gate Bridge Highway & Transp. Dist. (1998) 68 CA4th 1149 and Lombardo v Huysentruyt (2001) 91 CA4th 656.

JAMES A. BARRINGER is a partner in the San Francisco firm of Barringer & Lawrence, LLP, where he specializes in estate- and trust-related litigation, including appeals, as well as estate planning probate and trust law. He received his B.A. in 1974 from the University of California, Santa Barbara, and his J.D. in 1977 from the University of California, Hastings College of the Law, where he was managing editor of the Hastings Law Journal. Mr. Barringer is a frequent author and speaker on estate planning, estate- and trust-related litigation, and powers of attorney and financial elder abuse for CEB, the Estate Planning, Probate and Trust Law Section of the California State Bar, the Northern Trust Bank Trust Forum, and the University of Southern California Probate and Trust Conference. He is a certified specialist in Estate Planning, Probate, and Trust Law.

KRISTOFER W. BIORN is a shareholder in the Palo Alto firm of Crist, Biorn, Shepherd & Roskoph, where he specializes in litigation related to estates, trusts, fiduciaries, and elder abuse, and also represents parties in real estate, corporate, and partnership litigation. He obtained his undergraduate degree from Duke University in 1987 and his law degree from the University of California, Hastings College of the Law in 1992. He served as an extern law clerk to the Hon. Eugene F. Lynch, judge of the federal district court for Northern California. Mr. Biorn serves on the Executive Committee for the Silicon Valley Bar Association and as the judicial liaison to the Probate Department of the San Mateo County Superior Court. He also serves on Avidbank's Board of Directors.

RICHARD M. BRYAN is a shareholder and president of the firm of Bryan, Hinshaw & Barnet in San Francisco, specializing in estate and probate litigation, contract and business litigation, construction law, personal injury, and family law. He received his A.B. with honors in 1960 from the University of California, Berkeley, and his LL.B. in 1963 from the University of California, Berkeley, School of Law. Mr. Bryan has lectured and written extensively for CEB and other organizations on a wide range of litigation topics. He has been appointed judge pro tem and referee by San Francisco Superior Court in discovery matters, construction disputes, and family law matters. Mr. Bryan is also an associate of the American Board of Trial Advocates, the former chair of the Bar Association of San Francisco, and a delegate to the State Bar of California, Conference of Delegates (1972–1982).

CLARK R. BYAM is a partner in the firm of Hahn & Hahn, Pasadena, where he heads the Probate and Trust Department. Mr. Byam received his B.A. in 1966 from Wesleyan University, Connecticut, and his J.D. in 1972 from the University of California, Hastings College of the Law. Mr. Byam is a fellow in the American College of Trust and Estate Counsel and is a current member in the Los Angeles County Bar Association Executive Committee Trusts and Estates Section. Mr. Byam is also a former member and advisor of the State Bar Executive Committee for Sections for Estate Planning, Trust, and Probate.

DOMINIC J. CAMPISI practices primarily in the areas of probate and trust litigation and real estate litigation. He was a founding partner in Evans, Latham & Campisi. He attended the University of Santa Clara, receiving his B.A. in 1966, and the Woodrow Wilson School of Public and International Affairs, Princeton University, earning a Master's in Public Affairs in 1968. He attended Yale Law School where he was an Associate Chubb Fellow and an editor of the Yale Law Journal, and received his J.D. in 1974. He is a fellow of the American College of Trust and Estate Counsel and a practitioner academician of the International Academy of Estate and Trust Law. He is a frequent lecturer and author for the San Francisco Bar Association, California State Bar Tax Section, California State Bar Probate Section, ACTEC, American Bankers Association, and various trust companies, as well as CEB, where he was the author of Probate and Trust Litigation (Cal CEB Program Handbook, 1981–1982), and coauthor of Estates and Trust Dispute Resolution and Litigation (Cal CEB Program Handbook, 1986, 1989, 1991, 1994, 1996). Other publications include Courts Change Standards, Trusts and Estates (Jan. 1988); Emerging Damage Claims and the Right to Jury Trials in Fiduciary Litigation, 27 Real Property Probate and Trust Journal 541 (1993); Alternatives to Litigation in Trust and Probate Proceedings, 42 The Arbitration Journal 30 (1987). He is the chairman of the Malpractice Committee and the Interference with Right to Inherit Subcommittee of the Litigation Committee of ACTEC.

MICHAEL G. DESMARAIS is a partner in the firm of Temmerman & Desmarais, LLP, Campbell. Mr. Desmarais received his A.B. in Economics in 1970 from the University of California, Davis, and his J.D. in 1973 from the University of California, Hastings College of the Law. He also received the Order of the Coif, Thurston Society, Hastings Law Review, American Jurisprudence Estate Planning Award. Admission: 1973, California Supreme Court, U.S. District Court, Northern and Eastern Districts of California, and U.S. Court of Appeals, Ninth Circuit; 1975, U.S. Claims Court; 1984, U.S. Tax Court. Mr. Desmarais is certified as a specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. He is a fellow of the American College of Trust and Estate Counsel and chair of the Litigation Subcommittee of the Executive Committee, Estate Planning, Trust and Probate Law Section of the State Bar of California. He is also a member of the Executive Committee, Estate Planning, Trust and Probate Law Section of the State Bar of California; Executive Committee, Estate Planning, Trust and Probate Law Section of the Santa Clara County Bar Association; State Bar of California, Santa Clara County Bar and American Bar Associations; and president of the St. Thomas More Society.

JOHN A. DUNCAN is a sole practitioner in Orange County, specializing in estate and trust litigation. Mr. Duncan received his B.A. from the University of Washington and his J.D. from the University of California, Hastings College of the Law. He has been certified as a specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. Mr. Duncan is a frequent author and lecturer for CEB and other organizations, including the Orange County Bar Association Estate Planning, Probate and Trust Law Section, on estate and trust litigation and various estate planning topics. He is a fellow in the American College of Trust and Estate Counsel and chair of the Orange County Estate Planning, Probate and Trust Law Section. He is also a member of the Orange Coast Estate Planning Council and the Orange County Trial Lawyers Association.

CAROLINE K. HINSHAW is a shareholder in the firm of Bryan, Hinshaw & Barnet in San Francisco. Ms. Hinshaw received her undergraduate degree from the University of California, Berkeley, and received her J.D. in 1980 from Armstrong College School of Law, where she was the valedictorian. A certified specialist in Estate Planning, Trust, and Probate Law, Ms. Hinshaw has been a speaker and author for CEB, the American Bar Association and the Bar Association of San Francisco.

DAVID G. KNITTER is a partner in the law firm of Knitter & Knitter, LLP in Vacaville. He practices in the area of financial elder abuse, contested conservatorships, and trusts and estates litigation. Mr. Knitter received his undergraduate degree from the University of Wisconsin and his law degree from the University of the Pacific, McGeorge School of Law. He is a member of the Executive Committee of the Trusts and Estates Section of the State Bar (TEXCOM) and previously served as president of the Solano County Bar Association.

SHIRLEY L. KOVAR is a shareholder in the San Diego firm of Branton & Wilson, where she practices primarily in the area of trust and probate litigation, including international dispute resolution. She received her B.A. in 1967 from Colorado Woman's College, her M.A.T. from the University of Kansas in 1969, and her J.D. in 1974 from the University of Kansas Law School, where she was editor-in-chief of the Kansas Law Review, Order of the Coif, and received the Samuel Mellinger award for Leadership, Scholarship and Service, and the award as Outstanding Woman in Academics for all graduate schools at the University of Kansas in 1974. She is a certified specialist in Estate Planning, Trust and Probate Law by the State Bar of California and a fellow of the American College of Trust and Estate Counsel, where she serves on the Fiduciary Litigation Committee and International Estate Planning Committee. She is a member of the Executive Committee of the Trusts and Estates Section of the State Bar of California, where she is vice-chair of the Litigation Committee. She is a frequent author and lecturer in the areas of trust and probate litigation and dispute resolution. Her reported cases include California First Bank v Townsend (1981) 124 CA3d 922.

JAMES P. LAMPING is a sole practitioner in San Francisco. He is certified as a specialist in estate planning, trust, and probate law by the State Bar of California Board of Legal Specialization. Mr. Lamping focuses his practice on estate planning, trust administration, probate, and litigation. He obtained his law degree and LL.M in taxation from the University of San Diego School of Law. He is a former member and advisor of the Executive Committee of the Trusts and Estates Section of the State Bar of California (TEXCOM). Mr. Lamping has written and contributed materials to several chapters in CEB's California Trust Administration practice guide.

THOMAS W. LATHAM has been in private practice since 1974 and was a founding partner in Evans, Latham & Campisi. He received his B.S. with honors in 1964 from the California Institute of Technology, an M.S. from the Massachusetts Institute of Technology in 1966, and an M.P.A. from Princeton University in 1968. He attended Georgetown University, receiving his J.D. in 1973. Mr. Latham is the coauthor of a number of articles on fiduciary litigation and estate administration. Appointed judge pro tem of San Francisco Superior Court in the Bar Association-sponsored volunteer program, he is a member of the National College of Probate Judges and the American Bar Association Estate and Trust Litigation Committee. He is active in alternate dispute resolution and is a member of the San Francisco Probate Department Pro Bono Mediation Panel and the Bar Association of San Francisco Early Settlement Program. He was also a State Bar of California delegate (State Bar Convention, 1975–1977). He practices primarily in the fields of trust and probate litigation, real estate litigation, and business law and litigation.

MARIA I. LAWLESS practices primarily in the areas of probate and trust litigation. She attended the University of San Francisco, receiving her B.A., cum laude, in 1986. She received her J.D. in 1990 from the University of California, Davis, School of Law, where she was a member of the Trial Practice Honors Board and a Moot Court participant. She was a member of the University of California Davis Law Review. Additionally, she is a member of the San Francisco Probate Department Pro Bono Mediation Panel. Her reported cases include Borelli v Brusseau (1993) 12 CA4th 647.

NOËL M. LAWRENCE is a partner in the San Francisco firm of Barringer & Lawrence, LLP, where she specializes in estate and trust litigation, as well as estate planning probate and trust law. Ms. Lawrence received her A.B. degree, with distinction, from the University of California, Berkeley, and her J.D. degree, cum laude, from the University of San Francisco, where she was president of the McAuliff Honor Society and managing editor of the University of San Francisco Law Review. She is certified as a specialist in Estate Planning, Probate and Trust Law by the California State Bar Association Board of Legal Specialization. Ms. Lawrence is a frequent author and speaker on estate planning and estate- and trust-related litigation for CEB, the Estate Planning, Probate and Trust Law Section of the California State Bar, the Northern Trust Bank Trust Forum, and the University of Southern California Probate and Trust Conference. She founded and chairs the Litigation Subcommittee of the Probate and Trust Law Section of the Bar Association of San Francisco.

NANCY M. LEVIN practices in San Francisco in the areas of probate and trust administration and litigation and real estate law. She received her B.A. from the University of California, Berkeley, in 1969 and her J.D. in 1973 from the University of California, Hastings College of the Law. Before joining Evans, Latham & Campisi in 1989, she worked at Solano County Legal Assistance and was the directing attorney from 1976 until 1981. Ms. Levin has written several articles for the CEB Real Property Law Reporter. Her reported cases include Alliance Mortgage Co. v Rothwell (1995) 10 C4th 1226 and Bonnette v California Health & Welfare Agency (ND Cal 1981) 525 F Supp 128. She became a shareholder of Evans, Latham & Campisi in 1999.

MATTHEW P. MATIASEVICH practices in San Francisco, specializing in trust and estate litigation. He received his B.A. from Stanford University in 1989 and his J.D. from the University of California, Davis, School of Law in 1993. He joined Evans, Latham & Campisi in 1997 and became a shareholder in 2003. He serves on the Executive Committee of the Trusts and Estates Section of the State Bar (TEXCOM), where he is a co-chair of the Litigation Subcommitee, and he is a past chair of the Litigation, Ethics and Malpractice Group for the Trust and Estate Law section of the American Bar Association. He has coauthored several updates of this book, and his reported cases include Conservatorship of Coombs (1998) 67 CA4th 1395.

MICHAEL B. McNAUGHTON is a partner in the San Francisco law firm of Hanson, Bridgett, Marcus, Vlahos & Rudy LLP. He has a general commercial litigation practice with an emphasis in trust and probate litigation at the trial and appellate level. He also practices in the area of business and real estate litigation. He has tried several will contests and has written on that subject for the California Trusts and Estates Quarterly, a publication of the State Bar of California Trusts and Estates Section. Mr. McNaughton is a 1993 graduate of the University of California, Berkeley, School of Law, where he was a member of the Order of the Coif. He is on the board of the Lawyers' Club of San Francisco and a member of the Edward J. McFetridge Chapter of the American Inn of Court.

STELLA PANTAZIS is a senior court staff attorney with the San Francisco Superior Court, Probate Court. She graduated from the University of San Francisco in 1981 with a B.A. degree and received a J.D. degree from the University of San Francisco, Kendrick Hall School of Law, in 1984. Ms. Pantazis is a frequent speaker on legal education topics and has appeared on numerous estate, trust, and elder law programs for CEB, the Bar Association of San Francisco, and other professional groups. She has served as a consultant to the 1996 update of the CEB publication California Elder Law: An Advocate's Guide, and has authored the "Duties of Guardians" pamphlet that is distributed to newly appointed guardians in the San Francisco Superior Court. She actively participates in the annual revisions of the San Francisco Local Rules for the Probate Court as an editor and drafter of new sections. Ms. Pantazis also serves as a mediator for the Pro Bono Estate and Trust Litigation Mediation Panel for the San Francisco Superior Court.

MARC L. SALLUS, of the firm Weinstock, Manion, Reisman, Shore & Neumann, A Law Corporation, Los Angeles, specializes in probate and trust litigation. Mr. Sallus received a B.A., cum laude, from Claremont Men's College in 1976, and a J.D. from the University of California, Hastings College of the Law in 1979. Mr. Sallus is an officer of the Probate Section of the Beverly Hills Bar Association, a member of the Los Angeles County Bar Association, and a member of CEB's Advisory Probate Subcommittee.

IRENE L. SILVERMAN practiced in Los Angeles, specializing in elder law, health care and elder abuse litigation, probate and trust litigation, trust and probate law, estate planning, and conservatorships and guardianships. She received her undergraduate degree at the University of California, Los Angeles, and her J.D., magna cum laude, in 1970 from the University of San Fernando Valley College of Law. Ms. Silverman was the author of numerous articles relating to legal aspects of health care, probate and conservatorships, dementia, and elder abuse litigation. She was also a frequent speaker for senior health care providers, health care professionals, and legal professionals, including UCLA, USC, Veteran's Administration Medical Center, Century City Hospital, community mental health organizations, senior care facilities, and Alzheimer's organizations. Ms. Silverman was the chair of the Trust and Estate Section of the Los Angeles County Bar Association and is a member of the Beverly Hills Bar Association (Probate and Trust Section), the American Bar Association (Probate, Real Property and Trust Sections), and the State Bar of California (Probate and Trust Section). Ms. Silverman has been certified as a specialist in Probate, Estate Planning and Trust Law by the State Bar of California Board of Legal Specialization.

CHARLES P. WOLFF is a 1977 cum laude graduate of the University of Michigan Law School, and received a B.A. from Wesleyan University in 1974. He has been a business litigator his entire career and has specialized in probate and trust litigation since coming to Evans, Latham & Campisi in 1985. Currently, he serves as co-chair of the Litigation Subcommittee of the Probate and Trust Section of the Bar Association of San Francisco. He has spoken on topics of interest to estate planners and litigators in the Bay Area and participated in the formation of the Pro Bono Mediation Panel of the San Francisco Probate Department. His reported cases include Alliance Mortgage Co. v Rothwell (1995) 10 C4th 1226, Creighton Univ. v Kleinfeld (ED Cal 1995) 919 F Supp 1421, and Roberts v Elaine Powers Figure Salons, Inc. (9th Cir 1983) 708 F2d 1476.

ANDREW ZABRONSKY practices primarily in the area of trust and estate litigation. He obtained his B.A. from Union College in 1980 and his J.D. from the University of California, Hastings College of the Law in 1984. He joined Evans, Latham & Campisi, in 1994 and became a shareholder in 1998. He is an active participant in the San Francisco Probate Department Pro Bono Mediation Panel. He is the author of Out-of-State Practitioners in Our Midst? The Impact of Birbrower and Estate of Condon, California Trusts and Estates Quarterly (1998). His reported cases include Estate of Condon (1998) 65 CA4th 1138; Conservatorship of Coombs (1998) 67 CA4th 1395; and Andrews v United Airlines (9th Cir 1994) 24 F3d 39.

About the 2017 Update Authors

NAZNIN CHALLA, update coauthor, practices in San Francisco and specializes in trust and estate litigation. She received her J.D. degree from Golden Gate University School of Law in 2002 and her L.L.M. in Taxation from Golden Gate University School of Law in 2008. Ms. Challa joined Evans, Latham & Campisi in 2003. In addition to lecturing at several trust and estate litigation seminars, she coauthored articles on fiduciary litigation and bioethics. Ms. Challa coauthored updates of this book in 2006 and 2007.

DAVID G. KNITTER, update author for chapter 4; see biography in the About the Authors section of this book.

MATTHEW P. MATIASEVICH, update coauthor; see biography in the About the Authors section of this book.

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