Trust on Trial

California Trust and Estate Litigation

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By: Downey Brand LLP

Blog Authors

Christopher Miles Kolkey
J. Patrick Doust
Jeffrey S. Galvin
Wiemond Wu

Latest from Trust on Trial

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Many California trusts confer a lifetime right to income on a person (often the surviving spouse) with the remainder passing to designated survivors upon the income beneficiary’s death.  When the income beneficiary dies, is it too late for the executor of the beneficiary’s estate to request an accounting for the purpose of evaluating whether the deceased beneficiary received all income to which he or she was entitled? No, says the California Court of Appeal in Dunlap v. Mayer (2021) ___ Cal.App.5th ___.  A decedent’s successor in interest, such as an executor, can hold the trustee to account.  In addition…
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We blogged recently about Keading v. Keading (2021) 60 Cal.App.5th 1115, which addresses whether a trial court can impose damages under California Probate Code section 859, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse. There is another split of appellate authority as to the interpretation of section 859.  Last year, the Court of Appeal, in Estate of Ashlock (2020) 45 Cal.App.5th 1066, held that a prevailing party is entitled to double damages under section 859, in addition to…
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When are delusions enough to invalidate an estate plan?  The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) ___ Cal.App.5th ___. The case involves a 90-year-old woman who favored a charity and disinherited the two grandchildren with whom she had been close.  The appellate court found that California Probate Code section 6100.5(a)(2) requires proof of a “mental health disorder” in addition to a delusion that caused the questioned testamentary disposition.  The opinion provides a guidepost for California lawyers who litigate contests arising from alleged delusions. Kay Pearson Turns Against and Disinherits Her…
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Many family member trustees are uncertain about whether and to what extent they can use trust assets to obtain legal representation.  For example, when two parents choose their daughter, upon their incapacity or death, to administer their trust as the successor trustee, the daughter may be unsure whether she can use trust money to hire a lawyer to help her deal with demands and complaints from her brother. In this post, we’ll review basic principles of California law with respect to when a trustee can pay a lawyer at the trust’s expense.  Spoiler alert: it may be best to take…
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A common misperception of trusts is that they are legal entities that, like corporations, can hold title to real estate and other property.  A new California appellate decision, Boshernitsan v. Bach (2021) ___ Cal.App.5th ___, addresses that misunderstanding. The litigation arose in San Francisco County Superior Court under the local rent control ordinance. Mark Vinokur and Rimma Boshernitsan held a two-unit property as trustees of the revocable living trust that they created.  They lived in one unit and tenants rented out the other.  They served a notice of termination on the tenants, saying that they intended to move Vinokur’s…
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A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under specified circumstances. In Keading v. Keading (2021) ___ Cal.App.5th ___, the Court of Appeal ruled that a trial court can impose double damages, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse.  The Keading court disagreed with a recent decision of another Court…
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Trust and estate litigators, and mediators, are buzzing over a recent decision from the California Court of Appeal that validates mandatory mediation of trust disputes. In Breslin v. Breslin (Case No. B301382, decided January 26, 2021), the appellate court held that a California probate judge may order the private mediation of trust disputes and then disallow the objections of any nonparticipating parties to a settlement agreement reached in mediation. The upshot of the case, assuming the opinion becomes final, is that probate judges may be more inclined to require pre-trial mediation and parties will need to participate to avoid waiving…
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The probate unit of the Sacramento County Superior Court (Department 129) will have a new judge in February 2021.  Judge Joginder Dhillon will become the probate judge, replacing Judge Kevin R. Culhane who has served in that role since January 2020. Governor Jerry Brown announced the appointment of Judge Dhillon in December 2018, providing the following background information: “Dhillon has served as a senior advisor in the Office of Governor Edmund G. Brown Jr. since 2013.  He earned a Bachelor of Science degree from the U.S. Air Force Academy in 1982 and served in the Air Force for 20…
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One of the first steps before filing a lawsuit is to decide which court has jurisdiction over it and where it is properly venued.  It’s a significant choice – not only for strategic reasons, but also because a poor selection may prove fatal to the lawsuit.  Such a hefty decision is not always an easy one.  The concepts of “jurisdiction” and “venue” can often be confused and tangled, even by experienced lawyers and judges.  In the probate context, there can moreover exist extra layers of complexity that can torment a plaintiff who simply wants to vindicate his or her rights.…
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As we enter the New Year, it’s a good time to revisit your estate plan.  The big question is whether your will, trust, power of attorney, and advance health care directive accomplish your personal objectives.  Guidance from an estate planner will help you review your plan in light of tax and other changes in the legal landscape, as well your evolving personal circumstances. Consider also the possibility of family conflict, upon your incapacity or death, over the administration of your trust and estate.  A “fire danger” sign provides the perfect illustration.  What’s the risk of fire, i.e., litigation in a…