Herren v. George S., 109 Cal. App. 5th 410 (2025):
(An elder abuse restraining order (EARO) may issue without adjudication of the elder’s capacity, and an attorney’s fee agreement constitutes a property right the deprivation of which constitutes financial elder abuse.) An attorney met with a prospective client, an 86-year-old man who had been declared incapacitated by his doctors. During the meeting, after the attorney concluded that the elder had capacity to retain her, the elder signed a fee agreement with the attorney that called for a $100,000 retainer. The attorney sent a letter to the co-trustees of the elder’s trust requesting payment of the $100,000 retainer. The co-trustees, one of whom was the elder’s daughter, declined to make the payment, and the daughter, acting as the elder’s attorney-in-fact, filed a petition for an elder abuse restraining order (EARO) against the attorney. The attorney opposed on several grounds, including that no one had rebutted the presumption of the elder’s competence and that the court could not issue an EARO without first adjudicating the elder’s capacity. The trial court issued the EARO, and the attorney appealed. The appellate court affirmed. It rejected the attorney’s contention that an elder’s capacity must be determined before an EARO may issue as no such determination is required under the Elder Abuse Act. Additionally, it concluded the fee agreement represented a property right, and there was substantial evidence that the attorney committed financial elder abuse by exerting undue influence to obtain the property right from the elder.
Packard v. Packard, 108 Cal. App. 5th 1284 (2025):
(Petition for construction and reformation of a trust amendment was not a contest where the petition sought to reform the trust to correct an alleged mistake as to trustor’s intent.) Trustor created a trust whereby he left the trust estate in equal shares to his two sons, Greg and Scott. Trustor later amended the trust to leave his personal residence to Greg, with an equalizing sum to Scott, and the trust residue split equally between the two sons. Trustor then interlineated a handwritten change, which he initialed and dated. The interlineated change would have had the effect of giving Scott an equalizing sum to one-half, as opposed to the full value, of the house. The trust contained a no contest clause. Following trustor’s death, Scott filed a petition for reformation and construction, asserting the handwritten interlineation did not reflect trustor’s true intent that his assets be distributed equally between his sons and that the court should consider extrinsic evidence to construe trustor’s intent. Greg argued the petition constituted a contest because Scott was challenging the handwritten interlineation, and that the contest was time-barred. The court ruled in Greg’s favor and granted his motion for judgment on the pleadings. The appellate court reversed: Scott’s petition did not seek to nullify his father’s trust, nor did it challenge the validity of the amendment. Instead, the petition sought judicial construction and reformation to reflect trustor’s true intent of leaving his assets equally between his two sons. Accordingly, the petition was not a contest and should proceed on the merits. This result is consistent with the rule that a no contest clause must be strictly construed and may not be extended beyond what was plainly intended by the trustor.
Grossman v. Wakeman, 104 Cal. App. 5th 1012 (2024):
(Estate planning attorney did not owe duty of care to client’s heirs because client’s intent to benefit heirs in the estate plan was not clear, certain, and undisputed.) In 2011, Richard met with his attorney, Wakeman, regarding changes to his estate plan. Richard instructed Wakeman that he wanted to leave his entire estate to his fourth wife, Elizabeth, and nothing to his son and grandchildren “because Elizabeth will make sure they’re taken care of.” Richard subsequently executed a trust restatement, prepared by Wakeman, leaving his entire estate to Elizabeth. Following Richard’s death, Richard’s son and grandchildren sued Wakeman and his law firm (“Attorneys”) for legal malpractice. The jury returned a special verdict finding that Richard’s son and grandchildren were the intended beneficiaries of Richard’s estate plan and awarded damages totaling $9.5 million. Attorneys appealed. The appellate court reversed: A nonclient third party can maintain a malpractice action only if there is clear, certain, and undisputed evidence of the client’s intent to benefit the nonclient third party. Because the evidence of Richard’s alleged intent to leave his estate to his son and grandchildren was not “clear, certain, and undisputed,” the evidence was insufficient to show that Attorneys owed a duty of care to Richard’s son and grandchildren in preparing the estate planning documents. The imposition of malpractice liability in these circumstances would not only be unjust, it would also place an intolerable burden on the legal profession.
Asaro v. Maniscalco, 103 Cal. App. 5th 717 (2024):
(The penalty in Probate Code section 859 for damages equivalent to double the value of the trust property is in addition to the remedy in Probate Code section 856 for return of the trust property, and the penalty may be awarded to the individual who brought the action.) After an eight day trial, the Probate Court held a trustee breached his fiduciary duties to the trust and committed financial elder abuse against the first spouse to die, while acting as co-trustee with the surviving spouse. The trustee was ordered to pay to the contesting beneficiary the amount of trust property taken, pursuant to Probate Code section 856, plus twice the value of the property taken, pursuant to Probate Code section 859, and the beneficiary’s attorney’s fees. The trustee appealed. The appellate court affirmed, agreeing with Estate of Ashlock (2020) 45 Cal.App.5th 1066 and disagreeing with Conservatorship of Ribal (2019) 31 Cal.App.5th 519: Probate Code section 856 allows the court to order the return of the property taken; Section 859 separately allows the court to order an additional penalty for culpable conduct up to twice the value of the property returned. Rather than “treble damages,” the opinion concluded the calculation is the joint effect of sections 856 and 859. In addition, the appellate court affirmed that Section 859 does not limit to whom the damages must be paid. In this case, the Probate Court properly exercised its discretion to award the damages to the petitioner-beneficiary because the petitioner was the only beneficiary who acted and the award prevented the trustee from sharing in the recovery in his role as a beneficiary.
Newman v. Casey, 99 Cal. App. 5th 359 (2024):
(Probate court exceeded its statutory authority under Welfare and Institutions Code section 15657.03 by issuing order declaring deed void ab initio in elder abuse restraining order proceeding.) Gracia filed a request for elder abuse restraining orders (EAROs) against her daughter, Marina. Gracia alleged that Marina misled Gracia to sign a deed transferring title of her home to Marina. In her request for EAROs, Gracia also requested an order requiring Marina to sign a rescission deed. The probate court found that Gracia met her burden of demonstrating financial abuse and issued EAROs with an expiration date of two years. The probate court further ordered that the transfer deed was void ab initio. Marina appealed. The appellate court affirmed in part and reversed in part: Pursuant to the summary procedure set forth in Welfare and Institutions Code section 15657.03, trial courts may issue any of the specifically enumerated restraining orders in subdivision (b)(5) for a specified duration of time not to exceed five years. The purpose of the statute is to secure the immediate safety of an elder to prevent further acts of abuse, but it does not supplant other provisions of the Elder Abuse and Dependent Adult Civil Protection Act (the Act). The order declaring the transfer deed void ab initio is not among the specifically enumerated restraining orders and violates the statute’s durational provisions. Permanent remedies, including the return of property, may be secured through a civil action under other provisions of the Act.
Hagerty v. Thornton, 15 Cal. 5th 729 (2024):
(The statutory method of revocation is available as a method of trust modification unless the trust expressly limits method of modification.) The trust instrument reserved to the settlor the “right by an acknowledged instrument in writing to revoke or amend.” An amendment named Haggerty as a beneficiary, but two subsequent documents excluded her. The final amendment was an executed handwritten amendment with instructions to the settlor’s estate planning attorney to place it with the original trust document. Haggerty argued the only available method of amendment under the trust required notary acknowledgement. The probate court and Court of Appeal found the final amendment validly made by the statutory method of modification.
The Supreme Court affirmed: The final amendment was valid because the settlor complied with the statutory method of signing and delivering the amendment to herself as trustee. It is undisputed that when the trust is silent on modification method, the statutory method of revocation is available as a method of modification. The law codifies the principle that the power of revocation implies the power of modification, and the Legislature intended to provide flexibility to settlors. Under the law, the statutory method is available unless the trust explicitly “provides otherwise.” Consistent with the intent and legislative history, when the trust specifies a method of modification, both the specified method and the statutory method are available. This is true unless the trust expressly makes the specified method exclusive or expressly precludes use of the statutory method.
Hamilton v. Green, 98 Cal. App. 5th 417 (2023):
(A civil complaint constituted “an action to contest a trust” within the meaning of Probate Code section 16061.8 because “the practical effect” of the complaint was a challenge to the validity of the trust instrument, and it was therefore subject to the 120-day deadline.) The settlor created a trust whereby if either of her two children predeceased her, then that child’s share would be distributed to his or her descendants. An amendment stated that if only one child survived the settlor, then the surviving child would inherit the entire estate. The settlor’s son predeceased her. After the settlor’s death, the trustee served a trustee notification pursuant to Probate Code section 16061.7 on the settlor’s heirs. After expiration of the 120-day period set forth in Probate Code section 16061.8, the predeceased son’s children filed a civil complaint alleging (1) interference with inheritance rights; (2) interference with prospective economic advantage; (3) interference with contract; (4) conversion; (5) quiet title; (6) breach of fiduciary duty; and (7) an accounting. All causes of action required the trial court to find the trust amendment was invalid. The trial court sustained the trustee’s demurrer without leave to amend on the grounds the complaint was time barred by the 120-day deadline under Probate Code section 16061.8. The appellate court affirmed: The “practical effect” of the civil complaint was to challenge the validity of the amendment. If the amendment was valid, the plaintiffs had no interest in the trust and no right to relief. The appellate court expressly rejected applying the definition of a “direct contest” set forth in Probate Code section 21310, which governs no contest clauses, as inapplicable to the analysis.
Robinson v. Gutierrez, 98 Cal. App. 5th 278 (2023):
(Caregiver that received free room and board in exchange for care services qualified as a care custodian and the decedent’s donative gift to her was subject to presumption of fraud or undue influence.) Gutierrez moved in with decedent and provided care services in exchange for free room and board. A few years later, decedent executed an estate plan naming Gutierrez as trustee and sole beneficiary. Decedent died 10 days later. Decedent’s heirs petitioned the probate court to determine the validity of decedent’s estate plan and alleged that Gutierrez committed elder financial abuse and undue influence. The trial court denied the heirs’ petition on the ground that Gutierrez’s receipt of free room and board did not constitute “remuneration” for purposes of the care custodian presumption because room and board did not constitute taxable income. Decedent’s heirs appealed. The appellate court reversed: There is no indication that the Legislature intended remuneration to be limited to taxable income, which means gross income or adjusted gross income less allowable deductions. Rather, interpreting remuneration to include room and board is consistent with the term’s ordinary usage, the legislative intent to protect vulnerable adults from financial abuse, and the court’s interpretation of remuneration in employment-related cases. Further, it is a settled rule of statutory construction that where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. Had the Legislature intended to exclude room and board from being considered as remuneration, it would likely have listed room and board as an additional exception.
Estate of Martino, 96 Cal. App. 5th 596 (2023):
(A stepchild may establish a right to intestate succession where the decedent receives the child into their home and openly holds out the stepchild as their natural child.) Decedent died intestate and his stepson from a previous marriage, Nick, petitioned to be deemed an heir. Nick conceded that he could not establish that a legal barrier to adoption persisted until Decedent’s death and instead, sought to establish heirship on the ground that Decedent openly held Nick out as his natural child. Decedent’s biological children objected. The probate court determined that Decedent’s biological children failed to rebut the presumption of parentage and that Decedent was Nick’s “natural parent” for purposes of intestate succession. The appellate court affirmed: Nick had standing to pursue heirship even though he was not Decedent’s biological son. The intestacy provisions of the Probate Code define natural parentage for purposes of intestate succession to include presumed parentage that is not rebutted under the Uniform Parentage Act. Therefore, a stepchild may establish a right to intestate succession if the presumed parent receives the child into their home and openly holds the child out as their natural child. Probate Code section 6454 (requiring stepchild to establish persisting legal barrier to adoption) is not the exclusive path to heirship for an unadopted stepchild. Finally, Nick was not judicially estopped from claiming Decedent was his “natural parent” because he claimed that his biological father was his “natural father” in a separate probate proceeding.
Städel Art Museum v. Mulvihill, 96 Cal. App. 5th 283 (2023):
(Where the trust provided the trustee with “sole discretion” to make any distribution in cash or in-kind, it was error for the probate court to interpret the trust as requiring an immediate sale of real property and distribution of the proceeds.) Two different trusts each held a 50% interest in real property. Both trusts named the same successor trustee, but named different beneficiaries. Pursuant to Probate Code section 17200, the successor trustee petitioned the court for instructions due to a potential conflict of interest between the beneficiaries of the two trusts. The beneficiaries of one trust wanted the successor trustee to sell the real property and distribute the cash proceeds whereas the beneficiary of the other trust desired an in kind distribution. The probate court instructed the trustee to immediately sell the properties and distribute the proceeds to the respective beneficiaries. Städel Art Museum, one of the trust beneficiaries, appealed. The appellate court vacated the order and remanded: The trust merely “requested” the trustee to sell the real property assets upon the death of the settlor, which the court interpreted using the term’s common meaning as read together with other language in the trust, including the trustee’s “sole discretion” to make distributions in cash or in-kind. As a result, the trust did not require the trustee to immediately sell the real property and distribute the cash proceeds. The probate court should have instructed the trustee to exercise his sole discretion, which he must exercise in favor of the beneficiary of the trust—not in the interests of third parties, such as the beneficiaries of the other trust.
Bruno v. Hopkins, 79 Cal. App. 5th 801 (2022):
(Beneficiary who petitions to remove a trustee in bad faith may be liable for attorneys’ fees and costs exceeding their beneficial interest in the trust.) Mildred and James created a trust and named their children as remainder beneficiaries. Their two eldest daughters, Lynne and Gail, were to receive $200,000 from the revocable survivor’s trust and the residue was to be divided equally between their youngest two daughters. James died in 2006. In 2015, after receiving a notice by trustee and copy of the trust, Lynne filed a petition to remove Mildred as trustee and to declare the trust instrument a forgery. Following a 13-day court trial on the bifurcated forgery claim, the court determined that the trust instrument was not a forgery. The trial court granted Mildred’s motion for attorneys’ fees and ordered Lynne to pay over $829,000 in attorneys’ fees and $96,000 in costs on the ground that there was no merit to the position Lynne pursued at trial and that Lynne acted without basis in filing any of her claims. Lynne appealed. The appellate court affirmed: The probate court has statutory authority to impose personal liability against a beneficiary that exceeds their share of the trust estate under Probate Code section 15642, subdivision (d). The legislative history of Section 15642 demonstrates that the addition of subdivision (d) was specifically designed to address the damage to trust estates resulting from bad faith claims. The only limitation is that the attorneys’ fees be “reasonable.” Further, the statute does not violate constitutional principles of due process as it provides notice that a person seeking to remove a trustee could be liable for “all or any part of the costs of the proceeding, including reasonable attorney’s fees.” There was substantial evidence to support the trial court’s finding that Lynne filed the petition for removal of Mildred in bad faith and that Mildred’s removal as trustee would be contrary to James’s intent.
Keading v. Keading, 60 Cal. App. 5th 1115 (2021):
(Award of double damages under Probate Code section 859 for elder financial abuse without a separate finding of bad faith was proper.) Siblings Hilja and Kenton filed multiple actions following the deaths of their parents Lucille and Lewis Keading in late 2015 and early 2016, respectively. Both siblings assisted with caring for the Keadings when their health deteriorated. Following Lucille’s death, Lewis amended the Keadings’ trust to treat the siblings equally and executed a power of attorney (“POA”) in favor of Hilja. In the month before Lewis’ death, Kenton had Lewis execute a declaration stating no financial abuse had taken place, had him execute a POA in favor of Kenton and had Lewis transfer stock to Kenton. Further, acting under the new POA, Kenton secretly transferred the family residence to himself and Lewis in joint tenancy and amended the Keadings’ trust to remove Hilja as successor trustee. Initially, the trial court removed Kenton and appointed a professional fiduciary as trustee. In advance of trial, the trial court found the latest POA (and the transfer deed executed thereunder) invalid, in part because Lewis executed it individually rather than as trustee. Following a four-day bench trial the court determined, based on testimony of Lewis’ estate planning attorney, that Lewis’ last lucid act was the equalizing amendment. The court found that Kenton exerted substantial undue influence such that the latest POA, the transfer deed and stock transfer had each resulted from elder abuse. Without making a finding of bad faith the court awarded double damages for financial elder abuse. The appellate court affirmed: Abundant evidence supported the trial court’s finding of elder financial abuse by undue influence. Rejecting Kenton’s alternative interpretations, the appellate court held that the introductory phrase of Probate Code section 859, requiring bad faith, modifies only the first of the three categories of conduct amounting to undue influence. Thus, because Kenton took property by elder financial abuse, the appellate court upheld the award of double damages without a separate finding of bad faith, consistent with prior case law and the plain language of the statute.
Breslin v. Breslin, 62 Cal. App. 5th 801 (2021):
(Beneficiaries who receive notice of court-ordered mediation and fail to participate are bound by the result.) David Breslin was the successor trustee of decedent Don Kirchner’s trust dated July 20, 2017, as restated on November 1, 2017. Though Breslin located the restated trust, he could not find the original trust. The restated trust made certain specific gifts and directed the residue of the trust estate to be distributed to persons and charities listed on exhibit A. Breslin could not locate exhibit A but found a document titled “Estate Charities (6/30/2017)” in Kirchner’s estate planning binder, and based on this document Breslin filed a petition to be confirmed as successor trustee and to determine the beneficiaries of the trust. Breslin served notice on each of the listed charities. Only three of the twenty-four charities responded. The court confirmed Breslin as the successor trustee and ordered mediation amongst interested parties, including Kirchner’s intestate heirs and all listed charities. Notice was given to all interested parties with a warning that any party may be bound by the terms of an agreement reached at mediation, and may lose rights as a trust beneficiary if the party does not participate in mediation. Breslin, Kirchner’s intestate heirs, and five of the listed charities participated in mediation and reached an agreement that was approved by the court. The court approved the settlement over the objections of certain non-participating charities (the “Pacific parties”) because they had failed to file a response to the underlying petition or participate in mediation, notwithstanding receiving notice of both. Held: Affirmed. The probate court has statutory authority to order parties into mediation, and to make any orders and take any other action necessary or proper to dispose of the matters presented by the petition. By failing to participate in mediation the Pacific parties waived their right to an evidentiary hearing and forfeited their interest in the proceedings. The trustee did not breach his fiduciary duties by entering into the agreement, even though he benefitted from it, because he provided notice of the mediation and an opportunity to participate to all interested persons. The Pacific parties may not refuse to participate and later complain about the result.
Cundall v. Mitchell-Clyde, LLC, 51 Cal. App. 5th 571 (2020):
(Unless a trust explicitly states that its revocation procedure is exclusive, a trustor can utilize the statutory method of revocation.) John Martin as trustor and initial trustee established a revocable trust for the benefit of Robert Cundall on February 11, 2009 (the February Trust). After having a falling out with Cundall, Martin revoked the February Trust and established a new trust with different beneficiaries (the May Trust). The February Trust stated that the trustor may revoke the trust at any time by delivering to the trustee (Martin) and successor trustee (Cundall) an appropriate written revocation document, signed by the trustor and his then-estate planning attorney, Frances Diaz. Martin did not follow the revocation method specified in the February Trust. Instead, Martin used the statutory revocation method, which requires that the trustor sign a revocation document and deliver it to the trustee. Cundall filed a petition for instructions seeking a determination that the February Trust was not properly revoked. He claimed that the procedure set forth in the February Trust was the exclusive method of revocation that Martin could employ, and because he failed to do so, all of the trust assets should pass to Cundall. The successor trustee and beneficiaries of the May Trust filed a petition seeking an order confirming the validity of the May Trust. The trial court found that the February Trust did not provide an exclusive method for revocation, and concluded that Martin’s revocation was valid. Held: Affirmed. Cundall argued that the statutory revocation method could not apply to the February Trust because the trust required a particular person (i.e., attorney Diaz, a trust protector) other than the settlor to approve the revocation. Cundall also claimed that even if the statute applied, the February Trust provided an exclusive method of revocation. There is no exception to the statutory revocation procedure for trusts that require a person other than the settlor to approve a trustor’s revocation. The statute applies to the method of revoking a trust, which can include the persons with authority to accomplish that task; there is no distinction. And because the February Trust did not state that its revocation procedure was exclusive, Martin, as trustor, could utilize the statutory method … and Martin’s revocation was valid.
Arace v. Medico Investments, LLC, 48 Cal. App. 5th 977 (2020):
(Upon a finding of financial elder abuse, an award of attorney’s fees is mandatory regardless of whether damages are awarded.) Miller lived for four years at a residential care facility called Medico. Colon, an employee at Medico, developed a relationship with Miller. Three years after Miller moved into the facility, Colon obtained a power of attorney over Miller’s finances and health care. When Miller’s great-niece, Arace, discovered this she demanded that Colon surrender the power of attorney and about $145,000 of Miller’s money that Colon had deposited into her personal bank account. Colon complied, and returned the money. Acting as successor trustee of Miller’s trust and personal representative of Miller’s estate, Arace sued Colon and Medico. The case was tried before a jury and the special verdict form contained three causes of action: financial elder abuse, neglect, and negligence. The jury found in favor of Arace on all three causes action, but only awarded damages for neglect. Arace was awarded damages, attorney’s fees, and costs. Medico appealed. The court of appeal affirmed: Medico contended the award of attorney’s fees was improper because no damages were awarded on the financial elder abuse cause of action, and therefore Arace should not have been treated as the prevailing party on that cause of action. But the court of appeal disagreed because the attorney fee shifting statute for financial elder abuse is not discretionary. By statute, the court is required to award attorney’s fees and costs where it is proven by a preponderance of evidence that a defendant is liable for financial elder abuse. Once Medico was found liable for financial elder abuse, an attorney fee award was mandatory regardless of whether Arace was awarded any other relief.
Barefoot v. Jennings, 8 Cal. 5th 822 (2020):
(A former beneficiary of a trust whose interest was eliminated by a subsequent amendment has standing to challenge the subsequent amendment in the Probate Court.) Settlor’s daughter, Joan Mauri Barefoot, filed a Trust contest challenging the validity of the 17th through 24th amendments of the Trust under Probate Code section 17200, alleging that the settlor was not competent at the time she executed the amendments, and that the settlor executed the amendments as a result of Joan’s sister Shana’s undue influence and fraud. Joan alleged that she had standing to bring her Trust contest under Probate Code section 17200 because she was a beneficiary and trustee of a prior version of the Trust (the 16th amendment), which would be reinstated if Joan were successful in her suit. Shana filed a motion to dismiss the Trust contest on the grounds that Joan lacked standing under section 17200 because she was neither a beneficiary nor a trustee of the Trust under the latest iteration of the Trust. The trial court found in Shana’s favor, and dismissed Joan’s petition without prejudice. The Court of Appeal affirmed.
The Supreme Court, however, reversed: Probate Code section 17200 grants standing in probate court to a disinherited beneficiary who seeks to challenge a trust instrument or amendment that eliminated his or her beneficial interest. Reading section 17200 to limit standing in probate court to current beneficiaries only would be inconsistent with the statutory scheme as a whole and the commonsense meaning of the section. Trust contests should be decided by the probate court. If a determination that a trust instrument or amendment is invalid would render a claimant a beneficiary of the trust, then such claimant has standing to bring a contest in probate court. Section 17206 enables the court to preserve trust assets and protect the beneficiaries while it adjudicates standing. The statutory scheme provides an orderly and expeditious mechanism for limited challenges to a trust, so that they can be litigated early in the probate process, and in probate court.
Sachs v. Sachs, 44 Cal. App. 5th 59 (2020):
David created a trust to distribute the bulk of his assets equally to his two children, Benita and Avram. David maintained handwritten papers he referred to as his “permanent record” reflecting certain lifetime gifts he made to his children over time. David told his bookkeeper that maintaining the list of payments to his children was important so the payments could be deducted from their respective inheritances. Avram received $451,027 more than Benita in lifetime gifts. After David’s death Benita, now the successor trustee, petitioned the court for authority to treat the lifetime gifts as advances on inheritance and to equalize the trust distributions. The court granted Benita’s petition and Avram appealed. The court of appeal affirmed: Lifetime gifts will be treated as partial or complete satisfaction of at-death transfers under certain circumstances, including where the transferor declares in a contemporaneous writing the gift is in satisfaction of, or its value will be deducted from, the at-death transfer. David’s permanent record satisfied this requirement since it was written contemporaneously and listed the dates and amounts of certain lifetime gifts to his children. Keeping such a record seemed to serve no other purpose than to equalize distributions between David’s children. Extrinsic evidence to prove the testator’s intent in making the record was admissible. No special form of writing, or even David’s signature, was required. Also, Avram acknowledged in an email to Benita that at least one of the payments would go on his record, evidencing his understanding the payments would be deducted from his inheritance.
Placencia v. Strazicih, 42 Cal. App. 5th 730 (2019):
Ralph Placencia opened a joint account with his daughter, Lisa, with a right of survivorship. Ralph died in December 2009. Prior to his death, Ralph left clear statements in his will that he did not want Lisa to succeed to this account, but wanted the proceeds of the account to go to his trust, for the benefit of all of his three daughters. The trial court determined Ralph’s intent should prevail and ordered Lisa to account for the funds to Ralph’s trust. Lisa appealed. The appellate court affirmed the trial court’s determination that a decedent’s will can contain clear and convincing evidence to overcome the presumption of a right of survivorship to a joint tenancy account.
Pena v. Day, 39 Cal. App. 5th 546 (2019):
Anderson created a revocable trust and amended it to name 15 different beneficiaries. Anderson later decided to amend his trust for a second time to reduce the number of beneficiaries and modify their respective percentages under the trust. He made handwritten interlineations to the first amendment, naming his friend Dey and others as beneficiaries. He then mailed to his attorney the original trust, the first amendment with the handwritten interlineations, and a Post-it® note asking his attorney to formalize his notes into a second amendment for his signature. Anderson then died without signing the second amendment. Pena, the trustee, sought instructions from the court confirming the handwritten interlineations did not constitute a valid amendment. The court granted summary judgment in Pena’s favor and Dey appealed. The court of appeal affirmed: Although it was clear Anderson intended to amend the trust, it was also clear he never actually signed a writing in compliance with the trust’s terms to effectuate his intent. The trust required that amendments “be made by written instrument signed by the settlor and delivered to the trustee.” The interlineations did constitute a writing separate and apart from the printed trust instrument itself, as required. And because Anderson was also the trustee he also effected delivery. However, the document was not signed. The interlineations therefore did not comply with the trust’s express requirement that amendments be signed. Nor can the Post-it® note Anderson attached to the documents he sent his attorney be deemed a part of the written instrument such that Anderson’s signature on the note effectively signed the interlineations. That Post-it® note was a separate writing that simply identified the enclosed documents.
Smith v. Szeyller, 31 Cal. App. 5th 450 (2019):
Don Smith Sr. and Gladys Smith created a family trust, naming their five children as beneficiaries. Don predeceased Gladys. Gladys amended the Survivor’s Trust several times to benefit one of the children, JoAnn. JoAnn and her husband, Edward, became co-trustees of the trust following Gladys’s death. JoAnn’s brother, Don, filed an action seeking an accounting and alleging various breaches of trust, amongst other claims, against JoAnn and her husband. None of the other siblings participated in the probate proceedings, despite receiving notice. The parties settled mid-trial. Under the terms of the settlement, the trustees agreed to pay tax penalties and interest for undisclosed gifts on behalf of the trusts, to pay for the appointment of a referee to oversee accountings and an amended IRS Form 706 on behalf of the trusts, to a certain sum to Don from JoAnn’s share, and to reimburse Don’s attorneys’ fees and costs from the trusts. The trial court approved the settlement as part of an order after trial. One of the non-participating beneficiaries, Donna, filed post-trial motions for a new trial and to vacate the judgment, arguing that Don’s fee award was not warranted under the substantial benefit doctrine. The trial court denied Donna’s motions. The Court of Appeal affirmed: Under the substantial benefit doctrine, a trial court may award fees to be shared by others upon whom a benefit was conferred, when a litigant, proceeding in a representative capacity, obtains a decision that results in a substantial benefit of a pecuniary or nonpecuniary nature. Although Donna had notice of all of the proceedings, she failed to participate in the underlying action. By failing to participate, Donna forfeited her objections, and was not deprived of due process. In the first published case to apply the substantial benefit doctrine in a probate context, substantial evidence existed to support the court’s exercise of discretion to order fees to be split amongst the trust beneficiaries, because the non-litigating beneficiaries received pecuniary and nonpecuniary benefits as a result of the litigation.
Kerley v. Weber, 27 Cal. App. 5th 1187 (2018):
Marcie Weber was convicted of theft from an elder, Philippa Johnston, and was ordered to pay restitution to the victim’s estate. Following Johnston’s death, her conservator, Sarah Kerley, filed a restitution action and an 850 petition to recover civil damages for the wrongful taking from an elder. In the restitution action, the parties stipulated to a judgment of $700,000. In the 850 action the court, based on principles of res judicata, granted the petition and awarded double damages of $1.4 million. The trial court rejected Weber’s argument that her prior restitution payments should be applied to the principal amount owed. The appellate court affirmed in part and reversed in part. The trial court had appropriately entered judgment based on collateral and judicial estoppel because all of the elements for a taking under Section 850 had been met from the criminal conviction. Further, the criminal conviction also constituted a finding that Weber had taken property through elder abuse and, therefore, no separate proof of bad faith was needed to warrant double damages under section 859. The trial court also correctly held that the double damages award should not be reduced based on Weber’s restitution payments. Such an interpretation would go against the purpose of section 859 to punish and deter wrongdoers. (The court of appeal reversed the judgment only insofar as it had failed to apply Webber’s restitution payments to principal instead of interest, because the parties had agreed that they would be applied to principal.)
Gordon B. v. Gomez, 22 Cal. App. 5th 92 (2018):
Gordon B., a 75-year-old disabled veteran, obtained an elder abuse restraining order against his neighbor, Sergio Gomez, based on various acts of misconduct including destruction of personal property, verbal abuse, obscene gestures, attempts to run over Gordon B. with a pickup truck, and setting off large fireworks on Gordon B.’s driveway. The order followed an evidentiary hearing and was effective for one year. Prior to its expiration, Gordon B. filed a request to renew the restraining order based on concerns that the abuse would resume once the order was terminated. He cited to two incidents in which Gomez had arguably violated the restraining order. The trial court denied the request finding that Gordon B.’s concerns were too speculative and that he had insufficient evidence for a renewal. The appellate court reversed and remanded for further proceedings: Under the proper standard, the party requesting renewal need only show by a preponderance of the evidence that the protected party has a reasonable apprehension of future abuse if the order is not renewed. This means that the evidence must demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable. The trial court erred in requiring evidence of further abuse since the initial order, which is expressly not required under the applicable statutes.
Aviles v. Swearingen, 16 Cal. App. 5th 485 (2017):
Margaret Chappell created a trust in 2010 and amended it three times before succumbing to cancer in 2016. The original trust gave everything to her boyfriend, Jose Aviles. The subsequent amendments changed the distribution provisions with the third amendment naming Tracy Swearingen the sole remainder beneficiary and successor trustee. The third amendment also incorporated by reference the unchanged provisions of the second amendment, including a no contest clause. After Chappell died, Aviles filed a petition to invalidate the third amendment on the grounds that it was the product of undue influence and financial abuse. Swearingen opposed the petition and filed her own petition to disinherit Aviles based on his violation of the no contest provision. She argued the no contest provision in the second amendment was incorporated by reference into the third amendment. The trial court denied the petition to disinherit Aviles, ruling that the third amendment was not a “protected instrument” under the applicable statutes because it did not contain a no contest clause or expressly reference the no contest clause in the second amendment. The appellate court affirmed. Under California law, a no contest clause and its application to future trust amendments is strictly construed. The applicable statutes require that a “protected instrument” either contain the no contest clause or that the instrument be in existence on the date that the instrument containing the no contest is executed and is expressly identified in the no contest clause. (The appellate court also rejected Swearingen’s argument that the applicable statutes did not apply because there was a contrary provision in the trust.)
Estate of O’Connor, 16 Cal. App. 5th 159 (2017):
Betty established the Betty Lou O’Connor Trust naming as equal beneficiaries her two living children, Tom and Kelli, and her deceased son’s two children. In the last several years of her mother’s life, Kelli visited her five to six times a week and helped manage her affairs. She assisted Betty in opening two joint accounts at Wells Fargo. After Betty’s death, the parties disputed ownership of the accounts. Tom claimed the accounts were trust assets in which he had an interest; Kelli claimed they were solely hers based on the right of survivorship. The trial court found that Betty had indicated to Kelli that the money in the Wells Fargo accounts was for Kelli’s use and that both Betty and Kelli had “withdrawal rights” in the accounts. Wells Fargo confirmed that the accounts had been set up with Betty as the primary joint owner and Kelly as the secondary joint owner. The trial court concluded there was a presumption that the accounts were joint tenancy accounts with a right of survivorship and that Tom had failed to rebut the presumption. The sole issue on appeal was whether Betty intended to create joint accounts with the right of survivorship in favor of Kelli when she opened the accounts, thus excluding them from the trust. The Court of Appeal affirmed. Survivorship interests in multiple-party accounts are governed by Probate Code section 5302, which states in relevant part: “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party… as against the estate of the decedent unless there is clear and convincing evidence of a different intent.” Although Tom argued that no sufficient writing supported the joint tenancy nature of the accounts, a writing is not required to create the right of survivorship under California’s multiple-party account law. Moreover, Tom was unsuccessful in overcoming the presumption by clear and convincing evidence. Although Tom cited various contradictory statements made by Kelli regarding ownership of the accounts, the appellate court agreed with the lower court’s finding that there was insufficient evidence that Betty herself did not intend the accounts to be held in joint tenancy.
Mahan v. Charles W. Chan Ins. Agency, Inc., 14 Cal. App. 5th 841 (2017):
Fred and Martha Mahan created a revocable Children’s Trust and funded it with two second-to-die insurance policies on their lives, valued at a total of $1 million, and sufficient funds to pay the annual premiums well into the future. Two decades later, Fred, a lawyer at the end of his career, was in cognitive decline and Martha was diagnosed with Alzheimer’s disease. Taking advantage of the couple’s vulnerability, defendant insurance agents and brokers surrendered one policy and replaced the other with a single life policy requiring premium payments of $800,000, on which defendants earned $100,000 in commissions. To pay the increased premiums, the Mahans were forced to sell property and transfer additional money to the trust. The trial court sustained defendants’ demurrer to the Mahans’ financial elder abuse action on the grounds that the trust was not an elder who was protected by the Elder Abuse and Dependent Adult Civil Protection Act, and the Mahans voluntarily paid the premiums; defendants’ actions did not deprive the Mahans of property within the meaning of the Act. The Court of Appeal reversed. Liability under the Act may flow from transfers made voluntarily. The fact that the Children’s Trust owned the policies did not negate the claim, because defendants’ actions deprived the Mahans of property rights in a number of ways. They made the Mahans’ estate plan more expensive and less valuable, caused them to lose value in their insurance policies, and forced them to spend more money to pay new premiums and defendants’ commissions. Furthermore, defendants’ actions were perpetrated by means of undue influence. Therefore, the Mahans’ complaint properly stated a cause of action for financial elder abuse.
Higgins v. Higgins, 11 Cal. App. 5th 648 (2017):
A wife agreed to hold funds in trust for her husband’s elderly stepmother. After her husband’s death, the wife changed the form of the accounts and used the funds for her own purposes. The stepmother died and her personal representative brought this action to impose a constructive trust on the funds. At the conclusion of the personal representative’s case-in-chief, the trial court granted judgment in favor of the wife under Code of Civil Procedure section 631.8. The trial court found the husband committed no wrongdoing in transferring the funds to the accounts, and the trust designation on the accounts was revocable, so no constructive trust could be imposed on the funds. The appellate court reversed, holding that despite the form of the bank accounts, when clear and convincing evidence shows funds were transferred to an account owner to hold in an irrevocable trust for a third party beneficiary and the trustee repudiates the trust, a constructive trust may be imposed on the funds for the beneficiary’s estate to prevent unjust enrichment. (So long as all parties are living, an account belongs to the parties who have a present right to payment, in proportion to their contributions, unless there is clear and convincing evidence of a different intent.)
Tepper v. Wilkins, 10 Cal. App. 5th 1198 (2017):
Belinda Wilkins Tepper sued her three siblings, Geoffrey Wilkins, Martha Wilkins, and Derek Wilkins, on behalf of her 88-year-old mother, Eileen Wilkins, claiming her siblings’ actions individually and as trustees of Eileen’s revocable living trust constituted financial elder abuse. Tepper was not a trustee of Eileen’s revocable trust. Tepper did not allege that she had been personally aggrieved by the actions of her siblings or that she possessed the ability to file suit as Eileen’s conservator or attorney-in-fact. Tepper’s siblings demurred to her first amended complaint, asserting Tepper lacked standing to pursue an action on Eileen’s behalf. Eileen retained her own counsel and intervened in the action, joining the demurrer to Tepper’s amended complaint. The trial court sustained the demurrer without leave to amend and dismissed Tepper’s elder abuse action on standing grounds. The court of appeal affirmed. The trial court did not err in ruling Tepper lacked standing to bring the elder abuse action. Simply being an elder’s child is not sufficient to confer standing. Probate Code Section 48 defines an “interested person” as a child with an interest in a trust estate or estate of the decedent that may be affected by the proceeding. Tepper did not claim to have any interest in her mother’s revocable living trust, and even if she were named as a beneficiary, her interest would be merely potential and subject to change. Wilkins, not Tepper, was the real party in interest in the elder abuse action; Tepper was not aggrieved by the alleged conduct or otherwise beneficially interested in the controversy. Tepper did not proceed as her mother’s conservator or guardian ad litem; she therefore lacked standing to complain for financial elder abuse on her mother’s behalf.
Pizarro v. Reynoso, 10 Cal. App. 5th 172 (2017):
Reaffirms the court has equitable power to charge a beneficiary’s share with the trustee’s attorney fees and costs if the beneficiary brings an unfounded proceeding in bad faith … or even simply takes an unfounded position in a proceeding (acting in bad faith).
Williamson v. Brooks, 7 Cal. App. 5th 1294 (2017):
Trustees may be held liable for losses incurred by a trust, but they are not liable for personal damages suffered by beneficiaries, nor for opportunities lost by beneficiaries because distribution of trust assets did not occur earlier.
Babbitt v. Superior Court, 246 Cal. App. 4th 1135 (2016):
Mary Lynne and Leland Babbitt established a revocable trust. Upon Leland’s death, the trust was divided into two subtrusts: the revocable survivor’s trust and the irrevocable decedent’s trust. Leland’s daughter, Carol McCormack, petitioned to compel Mary Lynne to account for both subtrusts. Mary Lynne opposed the petition as to the revocable survivor’s trust, but the probate court granted Carol’s petition to compel both accountings. Mary Lynne filed a petition for a writ of mandamus and a request for a stay of the proceedings. The appellate court issued a peremptory writ of mandate to vacate the probate court’s order. While a trust is revocable, a trustee owes duties solely to the settlor, and a contingent beneficiary may not compel a trustee to account for a revocable trust as long as the settlor is not incapacitated, incompetent, or subject to undue influence. Even though a beneficiary has standing to compel an accounting or information from a trustee when a trust or a portion of a trust becomes irrevocable, the probate court does not have the authority to order a trustee to account or provide information regarding a revocable trust while it is still revocable and the settlor is competent and not subject to undue influence.
Carne v. Worthington, 244 Cal. App. 4th 1281 (2016):
Decedent executed a revocable trust in 1985 (the “1985 Trust”), and real property located on Via Regla was transferred to the 1985 Trust. Decedent executed an irrevocable trust in 2009 (the “2009 Trust”) which stated, “I transfer to my Trustee the property listed in Schedule A, attached to this agreement.” The sole asset listed on Schedule A was the Via Regla property. Decedent’s daughter filed a petition to confirm the validity of the 2009 Trust and that the Via Regla property was an asset of the 2009 Trust. The trial court found the transfer of Via Regla to the 2009 Trust was not valid because decedent was required to transfer title to the Via Regla property by a deed, and because decedent did not personally own the property at the time of the transfer. The appellate court reversed. The language quoted above in the 2009 Trust was sufficient to convey the property to the 2009 Trust, and decedent was not required to execute a deed. While decedent did not own the property individually at the time of the transfer, his signature on the 2009 Trust was sufficient to convey title from the 1985 Trust to the 2009 Trust because the 1985 Trust was a revocable inter vivos trust, he owned the property as sole trustee of the 1985 Trust, and he had the power to transfer real property owned by the 1985 Trust.
Hill v. Superior Court (Staggers), 244 Cal. App. 4th 1281 (2016):
Petitioners, co-executors, sought double damages under Probate Code section 859 for allegations that their stepfather wrongfully withheld property belonging to their mother’s estate. During the proceeding, the stepfather died and his son substituted in as the successor in interest. Summary adjudication was granted on the claim for double damages: the trial court held there can be no punitive damages in an action against a decedent’s personal representative or successor in interest. The appellate court reversed and held that the rule barring claims for punitive damages against a decedent’s estate did not preclude an award of double damages against the estate. Double damages under section 859 are not punitive damages, which require findings of oppression, fraud or malice. Rather, the damages under section 859 are statutory and only require a finding of bad faith, and may be awarded in addition to punitive damages.
Monschke v. Timber Ridge Assisted Living, LLC, 244 Cal. App. 4th 583 (2016):
Plaintiff signed a residency agreement containing an arbitration clause as her mother’s agent under a power of attorney. After her mother died, plaintiff sued the care facility for wrongful death and elder abuse in her capacity as personal representative. The trial court denied defendant’s petition to compel arbitration because plaintiff was not a party to the residency agreement. The appellate court affirmed. As personal representative, plaintiff sued on behalf of decedent’s heirs, not the decedent. Although the arbitration clause in the agreement purported to bind “all parties” and “heirs, representatives, administrators, successors and assigns”, only a party to an arbitration agreement may be bound by it. Plaintiff signed the residency agreement under decedent’s power of attorney, not in plaintiff’s personal capacity: the only parties to the residency agreement were the decedent and the defendant.
Estate of Britel, 236 Cal. App. 4th 127 (2015):
Decedent died intestate. Parent of minor child born out of wedlock brought petitions to administer the estate of Decedent and to determine heirship. Evidence was admitted that the Decedent was 99.9996 percent likely to have been the parent of the minor child. Nonetheless, both petitions were denied by the trial court on the basis that the Petitioner had not met her burden under Probate Code § 6453(b) to establish by clear and convincing evidence that the Decedent had openly held out the minor as being his own. The judgment was affirmed on appeal. Held: The statutory requirement of “openly held out” requires an unconcealed affirmative representation of paternity in open view.
Paul v. Patton, 235 Cal. App. 4th 1088 (2015):
Decedent retained attorney to draft an amendment to a revocable trust. The decedent executed the amendment, which as drafted named decedent’s children and spouse as beneficiaries. After decedent’s death, decedent’s children petitioned to modify the amendment, alleging it failed to implement the decedent’s instructions by incorrectly including decedent’s spouse as a beneficiary entitled to receive an interest in decedent’s brokerage accounts and real and personal property. In connection with the probate proceeding, the drafting attorney admitted the amendment did not reflect the decedent’s stated intentions. After the probate proceeding was settled, the decedent’s children sued the attorney for legal malpractice. The decedent’s attorney successfully demurred to the complaint on the ground, inter alia, he owed no duty to decedent’s children. The appellate court reversed on the basis that decedent’s children should have been granted leave to amend to allege such a duty. Held, applying the six so-called Biakanja/Lucas factors to these facts, it cannot be said as a matter of law that the attorney did not owe decedent’s children a duty.
Sterling v. Sterling, 242 Cal. App. 4th 185 (2015):
Donald Sterling appealed probate court orders concerning the sale of the Los Angeles Clippers, an NBA team and a major asset of the Sterling Family Trust. The Court of Appeal made three key findings/rulings: First, it found Donald Sterling was properly removed as trustee pursuant to the terms of the trust, which was supported by evidence presented by physicians as to his lack of capacity and his inability to manage his finances and withstand undue influence; second, the court found that Probate Code section 1310(b) authorized the probate court to instruct the trustee (Rochelle Sterling) to sell the Clippers notwithstanding the stay on appeal of the probate court’s order, because the risk of loss to the trust estate if the sale fell through was extraordinary or imminent given the $2 billion purchase price as compared with other offers and valuations; and, third, the court held that it was not improper for the trustee to wind up the affairs of the trust, even after Donald revoked the trust. (The trustee’s winding up of the trust included seeking the best possible result for the beneficiaries in selling the Clippers, in accordance with her duty of loyalty as trustee.)
Doolittle v. Exchange Bank, 241 Cal. App. 4th 529 (2015):
Susan Doolittle filed petitions to invalidate her mother’s restated trust on grounds of lack of capacity, undue influence, and financial elder abuse. The trust’s no contest clause directed the trustee to defend a contest at the expense of the trust estate. Susan and the trustee, Exchange Bank, filed competing petitions for instructions to address the trustee’s authority to use trust funds to pay for litigation expenses. The trial court found that the defense directive is not a no contest clause, and authorized the trustee to use trust funds to defend against Susan’s petitions. The appellate court affirmed. The Doolittle trust specifically directed the trustee to defend against claims challenging the validity of the trust at the expense of the trust. The appellate court determined that since the clause on defense of claims was not a no contest clause itself, it was not necessary to first make a determination that Susan’s claims were asserted without merit or probable cause before it granted authorization for fees to defend the trust. Assuming Susan has probable cause for her claims, the residue will be reduced by defense costs. If the rule were otherwise, there would be no means to implement the trustor’s intentions until after the litigation is adjudicated, which would render the defense directive meaningless. (However, a contesting party still may seek a preliminary injunction in such circumstances: The court has authority to enjoin the use of trust assets to defend against a contest, upon a sufficient showing of the contestant’s likelihood of success.)
Conservatorship of Kevin A., 240 Cal. App. 4th 1241 (2015):
Counsel’s attempted waiver of jury trial in conservatorship action is ineffective without proposed conservatee’s consent.
Conservatorship of Moore, 240 Cal. App. 4th 1101 (2015):
Probate court did not abuse its discretion by surcharging retained counsel for an elderly person suffering from dementia, where the attorney neither safeguarded the well-being of the person nor the person’s financial resources, and where he put his own financial interests ahead of the interests of his client.
Estate of Duke, 61 Cal. 4th 871 (2015):
Rule that extrinsic evidence may never be introduced to reform an unambiguous will is abrogated. An unambiguous will may be reformed to conform to the testator’s intent if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted.
Siegel v. Fife, 234 Cal. App. 4th 988 (2015):
Conservator for trust settlor filed petition seeking approval of sale of real property belonging to trust (conservatee’s prior residence), alleging it was necessary for the benefit of settlor, who was incurring substantial expenses while residing in assisted living. Designated [specific] beneficiary of the trust’s real property objected, arguing the trust’s residuary property must be sold first, preserving specifically bequested property for the ultimate beneficiaries. The appellate court held the probate court did not abuse its discretion in ordering that the house be sold for the settlor’s (conservatee’s) benefit, and the trustee was not required to sell residuary gifts prior to selling the specifically bequested house.
Bounds v. Superior Court, 229 Cal. App. 4th 468 (2014):
Prospective purchasers’ alleged acts of procuring trustee’s signature on multiple documents to sell the property used as the place of business of a corporation held by the trust at a discount, and taking the position that they had the right to buy the property under trustee’s agreement, were sufficient to establish a “taking” of the property under the Elder Abuse Act, even though the property remained in the trust’s possession and the agreement was not performed, since the trust’s duty to disclose the dispute over the property impaired the trust’s ability to sell it for fair market value or to use it as security to obtain a loan on reasonable and commercially acceptable terms. Thus, to allege a “taking” of a property right under the Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which significantly impairs the value of the elder’s property; the agreement need not have been performed, and title need not have been conveyed.
Donkin v. Donkin, 58 Cal. 4th 412 (2013):
Under the newer statutory scheme governing enforceability of no contest clauses, the clauses only are enforceable when a beneficiary’s proposed action is covered by one of the three specified categories of contest outlined in Prob. Code § 21311 (as further defined in § 21310). (Most commonly, clauses only will be enforced against beneficiaries’ “direct contests” as defined in § 21310, when brought without probable cause.)
Bridgeman v. Allen, 219 Cal. App. 4th 288 (2013):
Statute providing for extensions of limitation periods upon service by mail does not apply to extend the time within which to contest a trust; the 120-period referenced in Prob. Code § 16061.8 (as triggered by notice under § 16061.7) commences upon deposit of the required notice in the mail.
Beckwith v. Dahl, 205 Cal. App. 4th 1039 (2012):
California recognizes the tort of “IIEI” – intentional interference with expected inheritance. To state a claim for intentional interference with an expected inheritance, a plaintiff must allege five distinct elements: (1) an expectancy of an inheritance, (2) proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator if there had been no such interference, (3) that the defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it, (4) that the interference was conducted by independently tortious means, and (5) that the plaintiff was damaged by the defendant’s interference.
Andersen v. Hunt, 196 Cal. App. 4th 722 (2011):
The level of capacity required to execute a relatively simple trust document necessarily is the same as that required to execute a will or codicil, rather than the “different, higher standard of mental functioning” required to execute a complex trust. Thus, when determining whether to invalidate a less complex trust instrument due to a trustor’s alleged lack of capacity, courts should evaluate the trustor’s capacity under the less stringent rules of testamentary capacity.
King v. Johnston, 178 Cal. App. 4th 1488 (2009):
A trust beneficiary has independent standing to sue third parties who participated in a breach of trust with the former trustee — notwithstanding the subsequent appointment of a successor trustee. (In other words, standing to bring an action against such third parties is not exclusively limited to the successor trustee.)
Gdowski v. Gdowski, 175 Cal. App. 4th 128 (2009):
A protective order under the Elder Abuse and Dependent Adult Civil Protection Act (i.e., an elder abuse restraining order) may issue on the basis of evidence of past abuse, only, without any particularized showing that the wrongful acts will be continued or repeated. (Moreover, the past abuse need only be demonstrated by a preponderance of evidence, rather than by clear and convincing evidence.)
Estate of Bennett, 163 Cal. App. 4th 1303 (2008):
Absent a stipulation, parties in contested probate matters are entitled to an evidentiary hearing (trial) on the merits; refusal to allow such a hearing consitutes reversible error.
In re Estate of Odian, 145 Cal. App. 4th 152 (2006):
Paid in-home caregiver provided social services (cooking, cleaning, driving, shopping) to decedent, and therefore was a care custodian presumptively disqualified from benefiting from decedent’s trust or will. (Probate Code § 21350(a)(6)).
Bernard v. Foley, 39 Cal.4th 794 (2006):
The personal friends of a decedent who had rendered extensive services (including health services) to her during the last few months of her life were deemed “care custodians,” and therefore were presumptively disqualified (Probate Code § 21350, et seq.) from benefiting from decedent’s amended trust executed three days before her death.
Tunstall v. Wells, 144 Cal.App.4th 554 (2006):
A testamentary trust’s “no contest clause” providing that one beneficiary’s contest voided other non-contesting beneficiaries’ bequests (along with the contestant’s bequest) did not violate public policy.
In re Conservatorship of Hume, 140 Cal. App. 4th 1385 (2006):
The burden of proof for objections to inventories and accountings in conservatorship proceedings is on the party objecting to appraisal, not on the conservator.
In re Estate of Rossi,138 Cal. App. 4th 1325 (2006):
An applicant’s failure to attach his/her proposed pleading to a Probate Code § 21320 application (for determination that a proposed action would not violate a given no contest clause) is not fatal to court’s jurisdiction.
Zwirn v. Schweizer, 134 Cal. App. 4th 1153 (2005):
A purported “creditor’s claim” by the nephew of a decedent’s late husband that decedent and her husband told him and others that when both died, he would receive 50 percent of their assets (i.e., alleging decedent breached an oral contract with her husband to that effect by revising her estate plan after his death to favor her own blood relatives) constituted a will contest within meaning of no-contest clause of decedent’s will.
Terry v. Conlan, 131 Cal. App. 4th 1445 (2005):
The award of fees to a trustee’s attorney (payable from trust proceeds) was an abuse of discretion where trustee had not remained neutral in litigation concerning management of trust, but rather had consistently favored her own interests and those of some beneficiaries over those of other beneficiaries.
David v. Hermann, 129 Cal. App. 4th 672 (2005):
An older sister successfully petitioned for invalidation of her mother’s trust (and amendment) based on a younger sister’s acts of fraud and undue influence.
Osornio v. Weingarten, 124 Cal. App. 4th 304 (2004):
An estate planning attorney owed a duty of care to a non-client prospective will beneficiary, who was testator’s care custodian, to advise and assist testator concerning approaches for overcoming the statutory presumptive disqualification of care custodians as donees (California Probate Code § 21350 et seq.); the attorney therefore may be held liable by a non-client for negligence in failing to advise testator of statutory consequences and in failing to refer testator to independent counsel for advice and preparation of certificate of independent review.
Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771 (2004):
Procedural prerequisites to seeking punitive damages in an action for damages arising out of professional negligence of a health care provider do not apply to punitive damage claim alleging elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act.
Delaney v. Baker, 20 Cal.4th 23 (1999):
A health care provider who engages in reckless neglect of an elder adult is subject to heightened remedies available under California’s Elder Abuse Act (EADACPA), and cannot invoke the typical restrictions limiting remedies against health care providers.