Notable Case Law

These summaries are prepared by Schwartz & Schwartz for general information only and are not legal advice. Verify each authority and its subsequent history before relying on it.

Cases on This Page

Herren v. George S., 109 Cal. App. 5th 410 (2025)

(An elder abuse restraining order may issue with no adjudication of the elder’s capacity — and a fee agreement is a property right, so obtaining one by undue influence is financial elder abuse.)

An attorney met privately with an 86-year-old man whose physicians had already found him unable to make medical or financial decisions, and left with a signed engagement agreement calling for a $100,000 retainer. When she demanded payment, the co-trustees of his trust refused, and one of them — the elder’s daughter, acting under his power of attorney — petitioned for a restraining order under Welfare and Institutions Code section 15657.03. The trial court granted it.

Affirmed. Nothing in the Elder Abuse Act obliges a court to adjudicate the elder’s capacity, or the petitioner to rebut the Probate Code’s presumption of capacity, before an elder abuse restraining order may issue. And the fee agreement was itself a property right: substantial evidence supported the finding that the attorney obtained it by undue influence, which is financial elder abuse.

Why it mattersThe respondent was a practicing trust and estates lawyer, Herren provides authority that the events of an attorney’s intake meeting can itself constitute abuse — and that a restraining order is available against counsel.

Packard v. Packard, 108 Cal. App. 5th 1284 (2025)

(A petition to construe and reform a trust to correct a mistake in expressing the trustor’s intent is not a contest, and is not caught by the 120-day period.)

The trustor left his estate equally to his two sons, then amended the trust to give the residence to one with an equalizing sum to the other. He later added a handwritten interlineation, initialed and dated, that would have halved the equalizing sum. The trust contained a no contest clause. After his death the disadvantaged son petitioned for construction and reformation, arguing the interlineation did not reflect his father’s intent that the sons take equally. His brother argued this was a contest, and time-barred. The probate court agreed and granted judgment on the pleadings.

Reversed. The petition did not seek to nullify the trust or challenge the amendment’s validity; it asked the court to construe and reform the instrument to reflect what the trustor actually intended. That is not a contest, and the 120-day limitation did not apply. The result follows the settled rule that a no contest clause is strictly construed and never extended beyond what the trustor plainly intended.

Line of authorityExtends Estate of Duke (2015) 61 Cal.4th 871 (reformation of an unambiguous instrument on clear and convincing evidence of mistake) into the trust context. Compare Hamilton v. Green (2023) 98 Cal.App.5th 417, where a complaint whose “practical effect” was to invalidate an amendment was barred by the120-day statute of limitations.

Grossman v. Wakeman, 104 Cal. App. 5th 1012 (2024)

(An estate planning attorney owes no duty to disappointed heirs unless the client’s intent to benefit them was clear, certain and undisputed.)

The client instructed his attorney to leave everything to his fourth wife and nothing to his son and grandchildren, saying she would see them taken care of. The restatement did exactly that. After his death the son and grandchildren sued the attorney for malpractice, and a jury found they had been the intended beneficiaries, awarding $9.5 million.

Reversed. A non-client may maintain a malpractice claim only where the evidence of the client’s intent to benefit them is clear, certain and undisputed. Here it was none of those — the client’s own recorded instruction cut the other way. Imposing liability on this record would place an intolerable burden on the legal profession.

The other side of OsornioRead with Osornio v. Weingarten (2004) 124 Cal.App.4th 304 and Paul v. Patton (2015) 235 Cal.App.4th 1088. Duty to a non-client turns on how unambiguous the documentary record of intent is — which is why the drafting file usually decides these cases.

Asaro v. Maniscalco, 103 Cal. App. 5th 717 (2024)

(Section 859’s penalty stacks on top of the section 856 order returning the property — a triple recovery in practice — and it may be paid to the beneficiary who prosecuted the case rather than into the trust.)

After an eight-day trial the probate court found a former co-trustee had breached his fiduciary duties and financially abused the first spouse to die. He was ordered to return the value of the property taken under Probate Code section 856, to pay twice that value under section 859, and to pay the petitioning beneficiary’s fees.

Affirmed. On the recurring question of whether section 859 produces double or treble recovery, the court sided with Estate of Ashlock (2020) 45 Cal.App.5th 1066 and against Conservatorship of Ribal (2019) 31 Cal.App.5th 519: section 856 orders the property back and section 859 adds a separate penalty of twice its value, so the recovery is threefold through the joint operation of two statutes rather than under any single “treble damages” provision. Second, section 859 does not say who receives the penalty. Awarding it to the petitioner personally was within the Court’s discretion, because he alone prosecuted the claim and paying it into the trust would have handed a share of the penalty back to the wrongdoer in his capacity as beneficiary.

Practice pointWhere the defendant is also a beneficiary, ask expressly for the section 859 penalty to be awarded to the petitioner.

Newman v. Casey, 99 Cal. App. 5th 359 (2024)

(An elder abuse restraining order can restrain conduct going forward; it cannot void a completed deed. Permanent remedies require a civil action under the Act’s other provisions.)

A mother alleged her daughter had misled her into signing a deed transferring title to her home, and sought restraining orders together with an order compelling the daughter to sign a rescission deed. The probate court found financial abuse, issued two-year restraining orders, and further declared the transfer deed void ab initio.

Affirmed in part, reversed in part. Welfare and Institutions Code section 15657.03 authorizes a specific, enumerated set of restraining orders for a fixed term not exceeding five years. Its purpose is to secure an elder’s immediate safety and prevent further abuse — not to supplant the rest of the Elder Abuse and Dependent Adult Civil Protection Act. An order voiding a deed ab initio is neither among the enumerated orders nor consistent with the statute’s durational limits. Permanent relief, including return of property, must be pursued in a civil (or other related) action.

Practice pointWhere a transfer has already completed, the restraining order is the emergency stopgap and a Probate Code 850 petition or civil action is the path to corrective remedies. The transaction cannot be unwound pursuant to section15657.03. (Compare White v. Wear (2022) 76 Cal.App.5th 24.)

Haggerty v. Thornton, 15 Cal. 5th 729 (2024)

(Where a trust specifies a method of amendment but does not make it exclusive, the settlor may still amend by the statutory method.)

The trust reserved the right to revoke or amend “by an acknowledged instrument in writing.” The settlor’s final amendment was handwritten, signed but not notarized, and left with instructions to place it with the original trust. A beneficiary cut out by that amendment argued notarial acknowledgment was the only route available.

The Supreme Court disagreed and upheld the amendment. Probate Code section 15401 makes the statutory method available unless the trust “provides otherwise” — and specifying a method does not do that. Where a trust names a method of amendment, both that method and the statutory one remain open unless the instrument expressly makes the specified method exclusive or expressly precludes the statutory route. The settlor complied with the statutory method by signing and delivering the amendment to herself as trustee.

Line of authorityHaggerty resolves at the Supreme Court level what Cundall v. Mitchell-Clyde (2020) 51 Cal.App.5th 571 had held below. Drafters who want a method to be exclusive must now say so in terms.

Hamilton v. Green, 98 Cal. App. 5th 417 (2023)

(You cannot escape the 120-day trust contest deadline by pleading around it. What matters is the practical effect of the pleading, not the labels on the causes of action.)

An amendment provided that if only one child survived the settlor, that child would take the entire estate. The son predeceased his mother. After the trustee served notification under Probate Code section 16061.7 and the 120-day period expired, the son’s children filed a civil complaint pleading interference with inheritance rights, interference with prospective economic advantage, interference with contract, conversion, quiet title, breach of fiduciary duty and an accounting. Not one cause of action was captioned as a contest — but every one of them required a finding that the amendment was invalid.

Affirmed on demurrer without leave to amend. The complaint’s practical effect was to challenge the amendment’s validity; if the amendment stood, the plaintiffs had no interest and no right to relief. It was therefore an action to contest the trust and was time-barred under Probate Code section 16061.8. The court expressly declined to import the “direct contest” definition in section 21310, which governs no contest clauses and has no bearing on the limitations analysis.

Compare PackardIn Packard v. Packard (2025) 108 Cal.App.5th 1284 a petition to construe and reform the trust was not a contest. The line runs between a pleading that would invalidate the instrument and one that asks the court to give effect to what the trustor actually meant.

Robinson v. Gutierrez, 98 Cal. App. 5th 278 (2023)

(Free room and board is “remuneration.” A caregiver paid in housing rather than wages is still a care custodian, and the presumption of fraud or undue influence applies.)

The caregiver moved in with the decedent and provided care in exchange for free room and board. Years later the decedent executed an estate plan naming her sole beneficiary and trustee, and died ten days after. The decedent’s heirs petitioned to invalidate the plan, alleging undue influence and financial elder abuse. The trial court denied the petition on the footing that room and board was not “remuneration” because it was not taxable income.

Reversed. Nothing suggests the Legislature meant remuneration to track taxable income — a term of art meaning gross or adjusted gross income less allowable deductions. Reading it to include room and board fits the word’s ordinary sense, the statutory purpose of protecting vulnerable adults from financial abuse, and the court’s treatment of remuneration in employment cases. It also follows the settled rule that where a statute specifies exceptions, others are not implied: had the Legislature meant to carve out room and board, it would have listed it.

Practice pointUnpaid family-style caregiving arrangements are the common fact pattern in this practice, and defendants routinely argue no remuneration was ever paid. Robinson forecloses that argument where the caregiver was housed and fed. It is also the modern statement of the care custodian presumption, now codified at Probate Code section 21380 et seq.

Estate of Martino, 96 Cal. App. 5th 596 (2023)

(A stepchild may inherit by intestate succession where the decedent took the child into his home and openly held him out as his own — section 6454 is not the only route.)

The decedent died intestate. His stepson from a prior marriage petitioned to be declared an heir. He conceded he could not show a legal barrier to adoption persisting until the decedent’s death — the path set out in Probate Code section 6454 — and argued instead that the decedent had openly held him out as his natural child. The decedent’s biological children objected. The probate court found the presumption of parentage unrebutted and determined the decedent was the stepson’s “natural parent” for purposes of intestate succession.

Affirmed. The stepson had standing to claim heirship though he was not a biological child. The intestacy provisions define natural parentage to include presumed parentage that goes unrebutted under the Uniform Parentage Act. Section 6454 provides one pathway for unadopted stepchildren and foster children; it does not foreclose the others. Nor was he judicially estopped by having described his biological father as his “natural father” in a separate probate proceeding.

Practice pointWhere the section 6454 legal-barrier requirement cannot be met — as it frequently cannot — presumed parentage under the Uniform Parentage Act remains available. The proof is the same kind that matters in Estate of Britel (2015) 236 Cal.App.4th 127: what the decedent said and did in front of other people.

Städel Art Museum v. Mulvihill, 96 Cal. App. 5th 283 (2023)

(A trust that “requests” a sale does not require one — and a trustee serving two trusts owes his discretion to the beneficiaries of the trust in question, not to the other trust’s beneficiaries.)

Two trusts each held a half interest in the same real property and shared a successor trustee but had different beneficiaries. Facing an evident conflict, the trustee petitioned for instructions under Probate Code section 17200. One trust’s beneficiaries wanted the property sold and the cash distributed; the other’s wanted the property in kind. The probate court instructed the trustee to sell immediately and distribute the proceeds.

Vacated and remanded. The instrument merely requested a sale on the settlor’s death, and that word carries its ordinary meaning — read together with the trustee’s express “sole discretion” to distribute in cash or in kind, it imposed no obligation to sell. The trustee was to exercise that discretion, and to exercise it in favor of the beneficiary of his trust rather than in the interests of third parties, including the beneficiaries of the other trust.

Practice pointWhere the same fiduciary serves two trusts with adverse interests, the answer is not to split the difference. Each trusteeship is owed undivided loyalty on its own terms — which is often an argument for separate trustees.

Bruno v. Hopkins, 79 Cal. App. 5th 801 (2022)

(A beneficiary who petitions to remove a trustee in bad faith can be held personally liable for fees far exceeding anything she stood to inherit.)

A daughter due to receive $200,000 under her parents’ trust petitioned to remove her mother as trustee and to have the trust instrument declared a forgery. After a thirteen-day trial on the bifurcated forgery claim the court found no forgery, and ordered her to pay over $829,000 in attorneys’ fees and $96,000 in costs — several times her interest — on findings that her claims had no merit and no basis.

Affirmed. Probate Code section 15642, subdivision (d) gives the probate court statutory authority to impose liability on a beneficiary beyond her share of the trust estate. The legislative history shows subdivision (d) was added precisely to address the damage bad-faith removal claims inflict on trust estates. The only constraint is that the fees be reasonable, and the statute supplies its own notice by warning that a person seeking removal may bear “all or any part of the costs of the proceeding, including reasonable attorney’s fees.”

Reconcile with PizarroPizarro v. Reynoso (2017) 10 Cal.App.5th 172 held that the court’s equitable fee-shifting power stops at the beneficiary’s share. Bruno is not in conflict: it rests on the express statutory authority of section 15642(d) in a removal petition. Which power is invoked determines whether personal assets are exposed — and it is the first thing to establish when advising a beneficiary considering a removal petition.

White v. Wear, 76 Cal. App. 5th 24 (2022)

(An elder abuse restraining order may prohibit a respondent from making or facilitating any further change to the elder’s estate plan — a forward-looking remedy that can preempt a contest rather than clean up after one.)

Thomas Tedesco, 94, had built an estate exceeding $40 million and had established a trust in 1988 with his late wife for their three biological daughters. After remarrying, and as his cognitive impairment advanced, his second wife and her daughters isolated him from his own children — blocking contact, removing their photographs — and engaged a succession of attorneys to rework a thirty-year estate plan. In January 2020 a purported trust amendment was signed disinheriting his biological children and grandchildren entirely, without notice to the conservator of his estate, the probate court, or the trustees. A cotrustee daughter petitioned for an elder abuse restraining order under Welfare and Institutions Code section 15657.03.

Affirmed in substance. The petition stated financial elder abuse, and the order properly restrained the respondent from making or facilitating any further change to the estate plan. The court struck one component — a firearms and ammunition restriction — as beyond what the record supported, but otherwise upheld the order.

Why it mattersWhite answers the question clients ask most often: whether anything can be done before the damage is locked in. Read with the companion appeal, White v. Davis (2023) 87 Cal.App.5th 270 (anti-SLAPP motions directed at restraining order applications), and with Newman v. Casey (2024) 99 Cal.App.5th 359, which marks the outer limit — such an order can restrain future conduct but cannot undo a completed transfer.

Keading v. Keading, 60 Cal. App. 5th 1115 (2021)

(Double damages under Probate Code section 859 may be awarded for financial elder abuse without any separate finding of bad faith.)

In the month before their father’s death, one sibling had him execute a declaration disclaiming any financial abuse, sign a new power of attorney in that sibling’s favor, and transfer stock. Acting under the new power, the sibling then moved the family residence into joint tenancy with himself and amended the trust to remove his sister as successor trustee. After a four-day bench trial the court found the father’s last lucid act had been an earlier amendment treating the children equally, that the later instruments were products of undue influence, and awarded double damages — without making a separate bad-faith finding.

Affirmed. The bad-faith requirement in the opening words of section 859 modifies only the first of the categories of conduct the statute reaches — a bad faith wrongful taking. Where the taking is instead established through undue influence in bad faith, or through the commission of financial elder abuse, no additional bad-faith finding is required.

Watch this oneThe construction of section 859’s bad-faith clause continues to generate published disagreement in the Courts of Appeal. Confirm the current state of the authority before relying on Keading as settled.

Breslin v. Breslin, 62 Cal. App. 5th 801 (2021)

(A probate court may order interested parties into private mediation, and those who receive notice but decline to appear may forfeit their trust interests entirely — over a vigorous dissent.)

Kirchner died in 2018 leaving a restated trust that gave the residue to persons and charities listed on an “Exhibit A” that could not be found with the instrument. The successor trustee petitioned to identify the beneficiaries and served all 24 charities named on a list recovered from the decedent’s estate planning binder. Three responded. The probate court ordered the interested parties — the intestate heirs and every listed charity — into private mediation, on notice warning that non-participants could be bound and could lose their rights as beneficiaries. The heirs and five charities participated and settled. Over objection from nine charities that had stayed away, the court approved the settlement.

Affirmed, 2–1. Probate Code section 17206 permits the probate court to “make any orders and take any other action necessary or proper to dispose of the matters presented by the petition,” which the majority read to include ordering mediation and treating participation as a prerequisite to an evidentiary hearing. By not appearing, the objectors waived that hearing and forfeited their interests in the proceedings.

Cite with careThis is the opinion after rehearing, filed April 5, 2021, superseding the original opinion of January 26, 2021. Justice Tangeman dissented, describing the result as a terminating sanction that conditioned the charities’ gifts on “a requirement Kirchner did not impose.” The Supreme Court denied both review and depublication on July 14, 2021, so the decision binds trial courts — but it has drawn sustained criticism on due process grounds, and weeks later the Fourth District read section 17206 considerably more narrowly in Dunlap v. Mayer (2021) 63 Cal.App.5th 419 (section 17206 does not authorize dismissing a contested petition without notice and an evidentiary hearing). Counsel receiving a “Breslin notice” should treat participation as mandatory.

Cundall v. Mitchell-Clyde, LLC, 51 Cal. App. 5th 571 (2020)

(A trust’s stated revocation procedure is not exclusive unless the instrument says so — absent that, the settlor may revoke by the statutory method.)

The settlor’s February trust said it could be revoked by a writing signed by the settlor and his estate planning attorney, delivered to the trustee and successor trustee. After falling out with the sole beneficiary, the settlor revoked by the statutory method instead — signing a revocation and delivering it to himself as trustee — and created a new trust with different beneficiaries. The disappointed beneficiary argued the trust’s procedure was the only one available, and that all the assets should therefore pass to him.

Affirmed. There is no exception to the statutory revocation procedure for trusts requiring a third party’s approval; the statute governs the method of revocation, and who may accomplish it is part of that method. Because the February trust never stated its procedure was exclusive, the statutory route remained open and the revocation was valid.

Now confirmed aboveThe Supreme Court adopted the same reading for amendments in Haggerty v. Thornton (2024) 15 Cal.5th 729.

Arace v. Medico Investments, LLC, 48 Cal. App. 5th 977 (2020)

(Once financial elder abuse is proven, the fee award under Welfare and Institutions Code section 15657.5(a) is mandatory — even where the jury awards nothing on that count.)

A facility employee obtained powers of attorney over an elderly resident’s finances and health care and moved roughly $145,000 into her own account. Confronted by the resident’s great-niece, she returned it. The great-niece nonetheless sued as successor trustee and personal representative. The jury found for the plaintiff on financial elder abuse, neglect and negligence, but awarded damages only on neglect. The court awarded fees and costs.

Affirmed. The facility argued the plaintiff could not be the prevailing party on a count carrying no damages. But section 15657.5(a) is not discretionary: where financial abuse is proven by a preponderance of the evidence, the court shall award reasonable attorney’s fees and costs. Liability triggers the award, irrespective of whether any other relief followed.

Practice pointWorth pleading a financial elder abuse count even where the recoverable damages sit elsewhere. A liability finding alone carries the fee award.

Barefoot v. Jennings, 8 Cal. 5th 822 (2020)

(A beneficiary written out by a later amendment has standing under Probate Code section 17200 to challenge that amendment in probate court.)

The settlor’s daughter contested amendments that had removed her as beneficiary and trustee, alleging incapacity, undue influence and fraud. Her sister moved to dismiss: under the operative version of the trust the contestant was neither beneficiary nor trustee, so she lacked standing under section 17200. The trial court agreed and dismissed, and the Court of Appeal affirmed.

The Supreme Court reversed. Reading section 17200 to confer standing only on current beneficiaries would be inconsistent with the statutory scheme as a whole and with the commonsense meaning of the section. Trust contests should be decided by the probate court. If a determination that an instrument or amendment is invalid would render the claimant a beneficiary, the claimant has standing to bring the contest there. Section 17206 gives the court ample power to preserve trust assets and protect beneficiaries while standing is adjudicated.

Why it mattersBefore Barefoot, disinherited beneficiaries faced a live risk of being routed out of probate court altogether. It is now the foundational standing authority for trust contests.

Sachs v. Sachs, 44 Cal. App. 5th 59 (2020)

(An informal running list of lifetime gifts, kept contemporaneously, was enough to treat those gifts as advances against inheritance under Probate Code section 21135.)

The settlor kept handwritten papers he called his “permanent record,” logging gifts made to his two children over the years, and told his bookkeeper the list mattered so the amounts could be deducted from their inheritances. One child had received $451,027 more than the other. After his death the successor trustee petitioned to treat the gifts as advances and equalize the distributions.

Affirmed. Section 21135 permits lifetime gifts to be treated as satisfying an at-death transfer where the transferor declares in a contemporaneous writing that the gift is in satisfaction of, or will be deducted from, that transfer. The permanent record qualified: it was contemporaneous, dated and itemized, and served no evident purpose other than equalization. Extrinsic evidence of intent was admissible, no particular form of writing was required, and the settlor’s signature was unnecessary. The disadvantaged sibling’s own email acknowledging that a payment would “go on his record” confirmed he understood the arrangement.

Practice pointClients keeping informal ledgers should be told those ledgers may prove dispositive. Conversely, in litigation the bookkeeper and the client’s own emails are often where this case is won.

Placencia v. Strazicich, 42 Cal. App. 5th 730 (2019)

(A will can supply the clear and convincing evidence needed to defeat the survivorship presumption on a joint account.)

A father opened a joint account with one daughter carrying a right of survivorship, but his will stated plainly that he did not intend her to take the account — the proceeds were to pass into his trust for all three daughters. After his death the trial court held his stated intent controlled and ordered the daughter to account for the funds to the trust.

Affirmed. The survivorship presumption attaching to a joint tenancy account can be overcome by clear and convincing evidence of a contrary intent, and the decedent’s own testamentary language was capable of supplying it.

Compare O’ConnorEstate of O’Connor (2017) 16 Cal.App.5th 159 shows the other outcome, where the contesting party could not carry the clear and convincing burden. Together they frame what evidence actually moves a court off the Probate Code section 5302 presumption.

Pena v. Day, 39 Cal. App. 5th 546 (2019)

(Clear intent to amend is not an amendment. Unsigned handwritten interlineations failed, and a signed Post-it® note attached to them could not supply the signature.)

The settlor made handwritten interlineations on his first amendment, reducing the beneficiaries and adjusting their shares, then mailed the trust, the marked-up amendment and a Post-it® note to his attorney asking him to formalize the changes into a second amendment for signature. He died before signing anything. The trustee sought instructions confirming the interlineations were not a valid amendment, and won on summary judgment.

Affirmed. The trust required amendments to be made by written instrument signed by the settlor and delivered to the trustee. Two of the three requirements were satisfied: the interlineations were a writing distinct from the printed instrument, and because the settlor was also trustee, delivery was accomplished. But the writing was unsigned. Nor could the Post-it® note be treated as part of the written instrument such that the settlor’s signature on it signed the interlineations — it was a separate writing that did no more than identify the enclosures.

Read with HaggertyPena is not in tension with Haggerty v. Thornton (2024) 15 Cal.5th 729. Haggerty concerns which method of amendment is available; Pena concerns a failure to complete any method at all. No route to amendment dispenses with a signature.

Smith v. Szeyller, 31 Cal. App. 5th 450 (2019)

(The substantial benefit doctrine applies in probate — and a beneficiary who receives notice but stays out of the proceeding forfeits the right to complain about the outcome.)

One of five beneficiaries petitioned for an accounting and alleged breaches of trust against his sister and her husband, the co-trustees. The other siblings received notice and did not participate. The parties settled mid-trial on terms that included reimbursing the petitioner’s fees and costs from the trusts, and the court approved the settlement as part of an order after trial. A non-participating beneficiary then moved for a new trial and to vacate the judgment, arguing the fee award was unwarranted.

Affirmed. Where a litigant proceeding in a representative capacity obtains a result conferring a substantial benefit — pecuniary or non-pecuniary — on others, the court may order the fees shared among those benefited. This was the first published decision applying the substantial benefit doctrine in the probate context. The objector, having had notice of all the proceedings and having chosen not to participate, forfeited her objections and was not deprived of due process.

Read alongside BreslinSzeyller concerned a beneficiary who sat out a trial. Breslin v. Breslin (2021) 62 Cal.App.5th 801 extended the same forfeiture logic to a beneficiary who sat out a court-ordered mediation — the step that made Breslin controversial.

Kerley v. Weber, 27 Cal. App. 5th 1187 (2018)

(A criminal conviction for elder theft can establish the section 850 taking by estoppel, no separate bad-faith finding is needed for double damages, and restitution already paid does not reduce the penalty.)

The defendant was convicted of theft from an elder and ordered to pay restitution to the victim’s estate. After the victim’s death her conservator brought both a restitution action, resolved by a stipulated $700,000 judgment, and a Probate Code section 850 petition. The probate court granted the petition on preclusion principles and awarded $1.4 million in double damages, rejecting the argument that restitution already paid should reduce the principal owed.

Affirmed in substance. Collateral and judicial estoppel supported judgment because every element of a section 850 taking had been established by the criminal conviction. The conviction likewise constituted a finding that property had been taken through elder abuse, so no separate proof of bad faith was needed to warrant double damages under section 859. And reducing the award by restitution payments would run against section 859’s purpose of punishing and deterring wrongdoers. The judgment was reversed only insofar as it failed to apply the restitution payments to principal rather than interest, which the parties had already agreed on.

Practice pointWhere a criminal conviction already exists, the civil case may be substantially won on preclusion. Obtain the plea colloquy and the restitution order early.

Gordon B. v. Gomez, 22 Cal. App. 5th 92 (2018)

(To renew an elder abuse restraining order the protected party need only show a reasonable apprehension of future abuse — not that further abuse has already occurred.)

A 75-year-old disabled veteran obtained a one-year restraining order against a neighbor after an evidentiary hearing on conduct including destruction of personal property, verbal abuse, obscene gestures, attempts to run him over with a pickup truck, and setting off large fireworks in his driveway. Before it expired he sought renewal, citing two incidents in which the neighbor had arguably violated the order and his concern that the abuse would resume once protection ended. The trial court refused, calling his concerns speculative and the evidence insufficient.

Reversed and remanded. The correct standard asks only whether the protected party has shown, by a preponderance of the evidence, a reasonable apprehension of future abuse if the order is not renewed — whether it is more probable than not that the risk is sufficient to make the apprehension genuine and reasonable. Requiring evidence of further abuse since the original order inverts the statute, which expressly does not demand it.

Practice pointRenewal hearings are frequently lost on this exact misapprehension. Cite Gordon B. at the outset to fix the standard before the evidence is heard.

Aviles v. Swearingen, 16 Cal. App. 5th 485 (2017)

(A no contest clause does not travel forward on its own. To reach a later amendment it must appear in that amendment, or the amendment must be expressly identified in the clause.)

The settlor amended her trust three times, the third naming a new sole remainder beneficiary and successor trustee. That third amendment incorporated by reference the unchanged provisions of the second — including its no contest clause — but said nothing about the clause itself. When a former beneficiary petitioned to invalidate the third amendment for undue influence and financial abuse, the new beneficiary sought to disinherit him under the incorporated clause.

Affirmed for the contestant. A no contest clause and its application to future amendments are strictly construed. An instrument is a “protected instrument” only if it contains the clause itself, or was in existence when the instrument containing the clause was executed and is expressly identified in that clause. General incorporation by reference does neither.

Drafting pointEvery amendment intended to be protected must restate the no contest clause. Referring back to the trust generally will not carry it forward.

Estate of O’Connor, 16 Cal. App. 5th 159 (2017)

(No writing is required to create survivorship rights in a multiple-party account, and the presumption is hard to rebut — clear and convincing evidence of contrary intent is the only route.)

A mother opened two joint accounts with the daughter who managed her affairs and visited five or six times a week. After her death the son claimed the accounts were trust assets; the daughter claimed them by survivorship. The trial court found the mother had indicated the money was for the daughter’s use, that both held withdrawal rights, and that the bank had established the accounts with the mother as primary and the daughter as secondary joint owner.

Affirmed. Probate Code section 5302 gives sums remaining on deposit at a party’s death to the surviving party as against the decedent’s estate, unless there is clear and convincing evidence of a different intent. No writing is required to create the right of survivorship under California’s multiple-party account law. The son’s evidence — largely inconsistent statements by his sister about ownership — went to her intent rather than the mother’s, and did not carry the burden.

Compare PlacenciaPlacencia v. Strazicich (2019) 42 Cal.App.5th 730 shows what does carry it: the decedent’s own testamentary language. Evidence about the surviving joint holder’s conduct will rarely be enough.

Mahan v. Charles W. Chan Ins. Agency, Inc., 14 Cal. App. 5th 841 (2017)

(Financial elder abuse liability can arise from transfers the elder made voluntarily — and the fact that a trust rather than the elder held the property does not defeat the claim.)

An elderly couple, one in cognitive decline and the other diagnosed with Alzheimer’s disease, had long funded a revocable children’s trust holding two second-to-die policies worth $1 million, with premiums provided for well into the future. Insurance agents surrendered one policy and replaced the other with a single life policy requiring $800,000 in premiums, earning themselves $100,000 in commissions. The couple sold property and moved further money into the trust to pay. The trial court sustained a demurrer, reasoning that the trust was not an “elder” protected by the Act and that the couple had paid the premiums voluntarily.

Reversed. Liability under the Act may flow from transfers made voluntarily. Nor did the trust’s ownership of the policies defeat the claim: the agents’ conduct deprived the Mahans of property rights in several ways — making their estate plan more expensive and less valuable, causing them to lose value in the policies, and forcing them to spend more on new premiums and the agents’ commissions. The conduct was perpetrated by means of undue influence, and the complaint properly stated a cause of action.

Practice point“She signed it herself” and “the trust owned it, not the elder” are the two most common demurrer arguments in financial abuse cases. Mahan answers both.

Higgins v. Higgins, 11 Cal. App. 5th 648 (2017)

(The form of the bank account does not control. Where clear and convincing evidence shows funds were held in an irrevocable trust for a third party and the holder repudiates it, a constructive trust may be imposed.)

A wife agreed to hold funds in trust for her husband’s elderly stepmother. After his death she changed the form of the accounts and applied the money to her own purposes. The stepmother’s personal representative sued to impose a constructive trust. At the close of the plaintiff’s case-in-chief the trial court granted judgment for the wife under Code of Civil Procedure section 631.8, finding the husband had committed no wrongdoing in transferring the funds and that the trust designation on the accounts was revocable.

Reversed. Despite the form of the bank accounts, where clear and convincing evidence establishes that funds were transferred to an account owner to hold in an irrevocable trust for a third-party beneficiary, and the trustee repudiates that 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.)

Practice pointUseful where an informal family arrangement was documented only by the bank’s standard forms. The account title is evidence of intent, not a ceiling on the remedy.

Tepper v. Wilkins, 10 Cal. App. 5th 1198 (2017)

(Being an elder’s child confers no standing to sue on her behalf. Without a conservatorship, a power of attorney, or a present interest of your own, the claim belongs to the elder.)

A daughter sued her three siblings for financial elder abuse on behalf of their 88-year-old mother, complaining of their conduct individually and as trustees of the mother’s revocable living trust. She was not a trustee, did not allege she had been personally aggrieved, and did not proceed as conservator, guardian ad litem or attorney-in-fact. The siblings demurred for want of standing; the mother retained her own counsel, intervened, and joined the demurrer. The trial court sustained it without leave to amend.

Affirmed. Simply being an elder’s child is not sufficient to confer standing. Probate Code section 48 defines an “interested person” as one with an interest in the trust estate or estate of the decedent that may be affected by the proceeding, and the daughter claimed no interest in her mother’s revocable trust — an interest that, even had she been named, would be merely potential and subject to change. The mother, not the daughter, was the real party in interest, and the daughter was neither aggrieved by the alleged conduct nor otherwise beneficially interested in the controversy.

Practice pointThe most common reason a well-founded elder abuse case fails at the pleading stage. Where the elder is living and competent, the elder must sue — or a conservator or attorney-in-fact must be in place first.

Pizarro v. Reynoso, 10 Cal. App. 5th 172 (2017)

(A probate court’s equitable power to shift the trustee’s fees onto a bad-faith litigant reaches that person’s share of the trust — but not their personal assets.)

Beneficiaries unsuccessfully challenged a trustee’s sale of trust real property, and the trial court ordered them to pay the trust’s attorney fees and costs. Affirmed in part, reversed in part. The court confirmed the settled rule that its equitable power over trusts allows it to charge the trustee’s reasonable fees and costs against the share of a beneficiary who instigates an unfounded proceeding in bad faith — or who takes an unfounded position in bad faith within a proceeding.

But it reversed insofar as the award ran against the litigants personally. That equitable power is bounded by the beneficiary’s interest in the trust estate and will not support a judgment reaching personal assets — so an appellant who held no beneficial interest could not be charged on that basis at all.

Read alongside BrunoBruno v. Hopkins (2022) 79 Cal.App.5th 801 upheld personal liability far exceeding a beneficiary’s interest — but under the express statutory authority of Probate Code section 15642(d) in a bad-faith trustee removal petition, not the court’s general equitable power. Whether a client’s fee exposure is capped at their share turns on which of the two is invoked.

Williamson v. Brooks, 7 Cal. App. 5th 1294 (2017)

(A trustee answers for losses to the trust — not for a beneficiary’s personal losses, and not for opportunities the beneficiary says she missed because distribution came late.)

A beneficiary of an irrevocable subtrust that had grown from $67,500 to more than $725,000 sued the co-trustees, contending that had she been told of the subtrust she would have used its assets to prevent the loss of her home. The trial court entered judgment for the trustees.

Affirmed. Probate Code section 16060 obliges a trustee to keep beneficiaries reasonably informed of the trust and its administration, and a failure to do so may expose the trustee to liability for financial damage to the trust’s assets. But the duty stops there: trustees accused of breach of fiduciary duty are liable only for losses to the trust itself, not for personal damages suffered by a beneficiary, and not for opportunities the beneficiary lost because distribution did not occur earlier.

Practice pointThe measure of damages, not the breach, is where these claims are won or lost. Establish loss to the trust corpus; a beneficiary’s own financial predicament will not substitute for it.

Babbitt v. Superior Court, 246 Cal. App. 4th 1135 (2016)

(While a trust remains revocable and its settlor is competent, the trustee’s duties run to the settlor alone — and a contingent beneficiary cannot compel an accounting.)

On the first spouse’s death the trust divided into a revocable survivor’s trust and an irrevocable decedent’s trust. The deceased spouse’s daughter petitioned to compel the surviving spouse to account for both. The surviving spouse resisted as to the revocable survivor’s trust; the probate court ordered both accountings, and she sought writ relief.

A peremptory writ of mandate issued vacating the order. While a trust is revocable, a trustee owes duties solely to the settlor, and a contingent beneficiary may not compel an accounting so long as the settlor is not incapacitated, incompetent, or subject to undue influence. Although a beneficiary has standing to compel an accounting or information once the trust or a portion of it becomes irrevocable, the probate court has no authority to order an accounting for the still-revocable portion while the settlor remains competent and free of undue influence.

Note the exception — and a change sinceThe exception is the practical route in most of these cases: incapacity, incompetence or undue influence removes the bar. Note also that Probate Code section 15800 was amended effective 2023 to address beneficiaries’ information rights during a settlor’s incapacity; check the current statute alongside Babbitt.

Carne v. Worthington, 246 Cal. App. 4th 548 (2016)

(A settlor can move property from his own revocable trust into a new trust by the language of the new instrument alone — no deed required.)

The decedent held real property in a 1985 revocable trust. In 2009 he executed a new irrevocable trust stating, “I transfer to my Trustee the property listed in Schedule A, attached to this agreement,” and Schedule A listed only that property. The trial court held the transfer ineffective because no deed had been executed and the decedent did not personally own the property at the time.

Reversed. The quoted language was itself sufficient to convey the property to the 2009 trust, and no deed was necessary. That the decedent did not own the property individually was immaterial: the 1985 trust was a revocable inter vivos trust, he held the property as its sole trustee, and he had power to transfer real property owned by it. His signature on the 2009 instrument therefore conveyed title from one trust to the other.

Practice pointWorth pairing with Estate of Heggstad (1993) 16 Cal.App.4th 943 when arguing that a general assignment or schedule effected a transfer without a recorded conveyance.

Hill v. Superior Court (Staggers), 244 Cal. App. 4th 1281 (2016)

(Section 859 double damages are a statutory remedy, not punitive damages — so the death of the wrongdoer does not extinguish them.)

Co-executors sought double damages under Probate Code section 859, alleging their stepfather had wrongfully withheld property belonging to their mother’s estate. He died during the proceeding and his son substituted in as successor in interest. The trial court summarily adjudicated the double damages claim away, on the rule that punitive damages cannot be recovered against a decedent’s personal representative or successor in interest.

Reversed. That rule does not reach section 859. Punitive damages require findings of oppression, fraud or malice; section 859 damages are statutory and require only a finding of bad faith. They are therefore recoverable against the estate, and may be awarded in addition to punitive damages where those are separately established.

Practice pointWhere the wrongdoer dies mid-case — common in this practice — the section 859 claim survives against the estate even though a punitive damages claim would not.

Monschke v. Timber Ridge Assisted Living, LLC, 244 Cal. App. 4th 583 (2016)

(Signing a facility’s residency agreement as an elder’s attorney-in-fact does not bind the signer personally — so a wrongful death claim brought on the heirs’ behalf escapes the arbitration clause.)

A daughter signed a residency agreement containing an arbitration clause in her capacity as her mother’s agent under a power of attorney. After her mother died she sued the facility for wrongful death and elder abuse as personal representative. The trial court denied the facility’s petition to compel arbitration because she was not a party to the agreement.

Affirmed. As personal representative she sued on behalf of the decedent’s heirs, not the decedent. Although the clause purported to bind “all parties” and “heirs, representatives, administrators, successors and assigns,” only a party to an arbitration agreement may be bound by it — and the only parties here were the decedent and the facility. Signing under the decedent’s power of attorney was not signing in a personal capacity.

Practice pointWho signed, and in what capacity, is the first document to obtain in any facility case. It frequently decides whether the matter is heard by a jury.

Estate of Britel, 236 Cal. App. 4th 127 (2015)

(DNA proves biology, not acknowledgment. “Openly held out” demands an unconcealed affirmative representation of paternity, made in open view.)

The decedent died intestate. The mother of his child, born outside marriage, petitioned to administer the estate and to determine heirship. Evidence established a 99.9996 percent likelihood that he was the child’s father. Both petitions were nonetheless denied: she had not carried her burden under Probate Code section 6453(b) of establishing by clear and convincing evidence that he had openly held the child out as his own.

Affirmed. The statutory requirement is not satisfied by biological certainty, nor by private acknowledgment. “Openly held out” requires an unconcealed affirmative representation of paternity, made in open view. A father who conceals the relationship does not satisfy it, however conclusive the genetic evidence.

Practice pointGenetic testing will not carry an heirship claim on its own. The evidence that matters is what the decedent said and did in front of other people.

Paul v. Patton, 235 Cal. App. 4th 1088 (2015)

(Where a drafting attorney concedes the instrument did not carry out the client’s instructions, the disappointed beneficiaries must be given the chance to plead a duty.)

The decedent retained an attorney to prepare a trust amendment. As drafted it named his spouse as a beneficiary entitled to an interest in his brokerage accounts and real and personal property, which his children said was contrary to his instructions. In the ensuing probate proceeding the drafting attorney admitted the amendment did not reflect the decedent’s stated intentions. After that matter settled, the children sued for malpractice, and the attorney demurred on the ground, inter alia, that he owed them no duty.

Reversed. Applying the six so-called Biakanja/Lucas factors to these facts, it could not be said as a matter of law that the attorney owed the decedent’s children no duty. They should have been granted leave to amend to allege one.

Line of authoritySits between Osornio v. Weingarten (2004) 124 Cal.App.4th 304 and Grossman v. Wakeman (2024) 104 Cal.App.5th 1012. What separates them is how unambiguous the record of the client’s intent is — and here the drafter’s own admission supplied it.

Sterling v. Sterling, 242 Cal. App. 4th 185 (2015)

(Capacity-based removal under a trust’s own terms, section 1310(b) authority to proceed despite an appellate stay, and a trustee’s power to wind up after revocation — all tested on a $2 billion sale.)

The trust’s major asset was the Los Angeles Clippers. The Court of Appeal upheld three rulings. First, the settlor was properly removed as trustee pursuant to the terms of the trust, on physician evidence that he lacked capacity and could neither manage his finances nor withstand undue influence. Second, Probate Code section 1310(b) authorized the probate court to instruct the remaining trustee to complete the sale notwithstanding the stay on appeal, 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. Third, it was not improper for the trustee to wind up the affairs of the trust even after the settlor purported to revoke it — including by seeking the best possible result for the beneficiaries in selling the team, in accordance with her duty of loyalty.

Practice pointThe section 1310(b) holding is the durable one. Where an appeal would otherwise freeze a transaction whose value is time-sensitive, Sterling is the authority for proceeding anyway. On the capacity standard, contrast Andersen v. Hunt (2011) 196 Cal.App.4th 722 — the instruments here involved community property elections, sub-trusts and estate tax planning, so the higher standard applied.

Doolittle v. Exchange Bank, 241 Cal. App. 4th 529 (2015)

(A clause directing the trustee to defend the trust at the trust’s expense is not itself a no contest clause — so the trustee may spend trust funds defending without any prior finding that the contest lacks probable cause.)

A daughter petitioned to invalidate her mother’s restated trust for lack of capacity, undue influence and financial elder abuse. The trust directed the trustee to defend any contest at the expense of the trust estate. She and the corporate trustee filed competing petitions for instructions on whether trust funds could be used to fund the defense. The trial court held the defense directive was not a no contest clause and authorized the expenditure.

Affirmed. Because the directive was not itself a no contest clause, the court did not first have to determine that the contest had been brought without merit or probable cause. Even assuming the contestant had probable cause, the consequence is simply that the residue is reduced by the defense costs. Any other rule would leave the trustor’s directive unenforceable until the litigation concluded, draining it of meaning.

The remedy that mattersThe court confirmed it retains authority to enjoin the use of trust assets to defend against a contest, on a sufficient showing of the contestant’s likelihood of success. Where a corporate trustee is funding its defense from the estate your client stands to inherit, that motion — made early — is often the only practical check. Compare Terry v. Conlan (2005) 131 Cal.App.4th 1445, where absent such a directive a trustee who abandoned neutrality could not have her fees paid from the trust.

Conservatorship of Kevin A., 240 Cal. App. 4th 1241 (2015)

(Counsel cannot waive a proposed conservatee’s right to a jury trial. The waiver must come from the conservatee.)

In a conservatorship proceeding, counsel for the proposed conservatee purported to waive trial by jury without the conservatee’s own consent. The attempted waiver was held ineffective: the right belongs to the proposed conservatee personally, and counsel cannot surrender it on his behalf.

Why it mattersA conservatorship determines whether a person retains control of their own person and estate. Treating the jury right as personal to the proposed conservatee means the record must show that person’s own waiver — a point worth confirming on the record in every contested proceeding.

Conservatorship of Moore, 240 Cal. App. 4th 1101 (2015)

(An attorney retained by a person with dementia may be surcharged where he safeguarded neither her wellbeing nor her finances and placed his own interests first.)

Retained counsel for an elderly person suffering from dementia neither safeguarded her wellbeing nor preserved her financial resources, and put his own financial interests ahead of those of his client. The probate court surcharged him, and the Court of Appeal found no abuse of discretion.

Read with HerrenBoth Moore and Herren v. George S. (2025) 109 Cal.App.5th 410 concern lawyers whose own conduct toward a cognitively impaired client became the subject of the proceeding — here through surcharge, there through an elder abuse restraining order.

Estate of Duke, 61 Cal. 4th 871 (2015)

(An unambiguous will may be reformed. The old rule barring extrinsic evidence to reform clear language is abrogated.)

The Supreme Court abrogated the rule that extrinsic evidence may never be introduced to reform an unambiguous will. A will may be reformed to conform to the testator’s intent where clear and convincing evidence establishes both that the will contains a mistake in the testator’s expression of intent at the time it was drafted, and what the testator’s actual specific intent was at that time.

Line of authorityCarried into the trust context by Packard v. Packard (2025) 108 Cal.App.5th 1284, which also held that a petition seeking such reformation is not a contest and is not subject to the 120-day period.

Siegel v. Fife, 234 Cal. App. 4th 988 (2015)

(A trustee need not exhaust residuary property before selling a specifically devised asset to fund the living settlor’s care.)

The conservator of a trust settlor petitioned for approval of the sale of real property held in trust — the conservatee’s former residence — on the ground that the sale was necessary for her benefit as she incurred substantial expenses in assisted living. The beneficiary specifically designated to receive that property objected, arguing that residuary property must be sold first so specifically bequested property is preserved for the ultimate beneficiaries.

Affirmed. The probate court did not abuse its discretion in ordering the house sold for the settlor’s benefit, and the trustee was not required to sell residuary gifts before the specifically bequested house.

Practice pointA remainder beneficiary’s expectation in a particular asset yields to the living settlor’s need for care. The abatement rules that order distributions at death do not constrain the trustee’s use of assets during the settlor’s lifetime.

Bounds v. Superior Court, 229 Cal. App. 4th 468 (2014)

(An unconsummated agreement can be a “taking.” The deal need not close and title need not pass for a property right to be impaired.)

Prospective purchasers procured a trustee’s signature on multiple documents to buy, at a discount, property used as the place of business of a corporation held by the trust, then took the position that they had a right to buy under that agreement. The property remained in the trust’s possession and the agreement was never performed.

Held sufficient to establish a taking under the Elder Abuse Act. The trust’s duty to disclose the dispute impaired its ability to sell the property at fair market value, or to use it as security for a loan on reasonable and commercially acceptable terms. To allege a taking of a property right under the Act, it is enough to plead that an elder has entered into an unconsummated agreement that significantly impairs the value of the elder’s property; the agreement need not have been performed, and title need not have been conveyed.

Practice pointOne of the most useful pleading authorities in this area: financial abuse does not require that money change hands. A cloud on marketability is itself the injury. Compare Mahan v. Chan (2017) 14 Cal.App.5th 841 on transfers the elder made voluntarily.

Donkin v. Donkin, 58 Cal. 4th 412 (2013)

(Under the scheme operative from 2010, a no contest clause is enforceable only against the categories of contest specified in Probate Code section 21311 — most commonly a direct contest brought without probable cause.)

The Supreme Court construed the no contest clause statutes that replaced the former scheme on January 1, 2010. Under sections 21310 through 21315, a clause is enforceable only where the beneficiary’s proposed action falls within one of the three categories identified in section 21311: a direct contest brought without probable cause; a pleading challenging a transfer of property on the ground that it was not the transferor’s property, where the clause expressly so provides; and a creditor’s claim or prosecution of an action based on one, again where the clause expressly so provides. The Court also held that a safe harbor application pending when the new law became operative was not subject to dismissal, and that the clause before it was unenforceable under both the former and the current law.

The governing frameworkDonkin is the starting point for any current no contest analysis. The older decisions on this page — Tunstall, Zwirn and Rossi — were decided under the repealed scheme and must be read against it. Note also that section 21312 requires a no contest clause to be strictly construed.

Bridgeman v. Allen, 219 Cal. App. 4th 288 (2013)

(Mailing does not extend the 120-day trust contest period. The clock starts when the notice goes into the mail.)

The statute providing for extensions of limitations periods upon service by mail does not apply to extend the time within which to contest a trust. The 120-day period referenced in Probate Code section 16061.8, triggered by notice under section 16061.7, commences on deposit of the required notice in the mail — not on receipt, and with no additional days added for mailing.

Practice pointThere is no cushion. Calendar the deadline from the mailing date shown on the trustee’s notification, and read with Hamilton v. Green (2023) 98 Cal.App.5th 417, which holds the bar cannot be avoided by recasting the contest as tort causes of action.

Beckwith v. Dahl, 205 Cal. App. 4th 1039 (2012)

(California recognizes the tort of intentional interference with expected inheritance — subject to real limits.)

The court recognized “IIEI” — intentional interference with an expected inheritance — for the first time in California. To state the claim 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 testator’s death if there had been no interference; (3) that the defendant had knowledge of the plaintiff’s expectancy 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 interference.

The limits matterThe tort is a gap-filler, and the fourth element does real work: the interference must be independently tortious — fraud, duress, undue influence — not merely persuasion. Compare Hamilton v. Green (2023) 98 Cal.App.5th 417, where an interference claim whose practical effect was to invalidate a trust amendment was treated as a time-barred contest.

Andersen v. Hunt, 196 Cal. App. 4th 722 (2011)

(Capacity is measured against the complexity of the document. A simple trust instrument requires only testamentary capacity.)

The level of capacity required to execute a relatively simple trust document is necessarily the same as that required to execute a will or codicil, rather than the “different, higher standard of mental functioning” required for a complex trust. When determining whether to invalidate a less complex trust instrument for a trustor’s alleged lack of capacity, courts should evaluate capacity under the less stringent rules of testamentary capacity.

The frameworkProbate Code section 6100.5 supplies the testamentary standard; sections 810 through 812 supply the sliding-scale standard for more complex decisions. For the contrast, see Sterling v. Sterling (2015) 242 Cal.App.4th 185, where the instruments involved community property elections, sub-trusts and estate tax planning.

King v. Johnston, 178 Cal. App. 4th 1488 (2009)

(A beneficiary has independent standing to sue third parties who participated in a former trustee’s breach — that claim is not the successor trustee’s alone.)

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. Standing to bring an action against such third parties is not exclusively limited to the successor trustee.

Practice pointValuable where a successor trustee is unwilling to pursue those who assisted the predecessor — often the banks, escrow agents and advisers who processed the transactions. The beneficiary need not wait for the trustee to act.

Gdowski v. Gdowski, 175 Cal. App. 4th 128 (2009)

(An elder abuse restraining order may issue on evidence of past abuse alone, proved by a preponderance — no showing that the conduct will recur is required.)

A protective order under the Elder Abuse and Dependent Adult Civil Protection Act may issue on the basis of evidence of past abuse alone, without any particularized showing that the wrongful acts will be continued or repeated. The past abuse need only be demonstrated by a preponderance of the evidence, rather than by clear and convincing evidence.

The companion rule on renewalGdowski governs issuance. On renewal, Gordon B. v. Gomez (2018) 22 Cal.App.5th 92 holds the protected party need show only a reasonable apprehension of future abuse — not that further abuse has occurred since the original order.

Estate of Bennett, 163 Cal. App. 4th 1303 (2008)

(Absent a stipulation, parties in contested probate matters are entitled to an evidentiary hearing on the merits. Refusing one is reversible error.)

Absent a stipulation, parties in contested probate matters are entitled to an evidentiary hearing — a trial — on the merits. Refusal to allow such a hearing constitutes reversible error.

The point recursCongested probate calendars generate pressure to resolve contested matters on the papers. Dunlap v. Mayer (2021) 63 Cal.App.5th 419 applied the same principle to a probate court’s dismissal of a contested petition at a case management conference, without notice that dismissal was on the table and without an evidentiary hearing.

In re Estate of Odian, 145 Cal. App. 4th 152 (2006)

(A paid in-home caregiver who supplied only social services — not medical care — was still a care custodian, and so presumptively disqualified.)

The caregiver cooked, cleaned, drove and shopped for the decedent. That was enough: the court held these were “health and social services” within the statutory definition, so she was a care custodian presumptively disqualified from benefiting under the decedent’s trust or will. The absence of any medical or nursing component did not remove her from the statute.

Statutory cautionDecided under former Probate Code section 21350(a)(6), repealed effective January 1, 2014 and replaced by section 21380 et seq. The analogous current provision is section 21380(a)(3), which is narrower — see the note to Bernard v. Foley below, and Robinson v. Gutierrez (2023) 98 Cal.App.5th 278 for the analysis under the current statute.

Bernard v. Foley, 39 Cal.4th 794 (2006)

(Personal friends who provided substantial health services to a decedent were “care custodians” and presumptively disqualified from taking under a trust amendment executed three days before her death.)

The decedent’s longtime friends took her into their home and provided extensive care, including health services, in her final months. Three days before she died she amended her trust in their favor. The Supreme Court held they fell within the statutory definition of “care custodian” and were presumptively disqualified, rejecting the arguments that the statute reached only professional caregivers and that a preexisting personal friendship took them outside it.

Statutory cautionDecided under former Probate Code section 21350 et seq., repealed effective January 1, 2014 and replaced by section 21380 et seq. Bernard remains instructive on what counts as care custodian services, but the current scheme differs in ways that matter: the presumption now applies only where the transferor is a dependent adult, and only to instruments executed during the period services were provided or within 90 days before or after that period. For the analysis under the current statute, see Robinson v. Gutierrez (2023) 98 Cal.App.5th 278.

Tunstall v. Wells, 144 Cal.App.4th 554 (2006)

(A clause voiding the bequests of non-contesting beneficiaries along with the contestant’s own did not violate public policy.)

A testamentary trust contained a no contest clause providing that a contest by one beneficiary would void the bequests of the other, non-contesting beneficiaries as well as the contestant’s own. The court held the provision did not violate public policy.

Statutory cautionDecided under the no contest clause scheme repealed effective January 1, 2010. Under the current statutes, enforcement is confined to the categories in Probate Code section 21311 — most commonly a direct contest brought without probable cause — and section 21312 requires strict construction. Read Tunstall against Donkin v. Donkin (2013) 58 Cal.4th 412 before relying on it.

In re Conservatorship of Hume, 140 Cal. App. 4th 1385 (2006)

(In conservatorship proceedings, the burden on objections to inventories and accountings rests on the objecting party, not on the conservator.)

The burden of proof for objections to inventories and accountings in conservatorship proceedings falls on the party objecting to the appraisal, not on the conservator.

Practice pointThe allocation matters from the outset. An interested person challenging a conservator’s appraisal carries the burden of establishing the objection; the conservator bears no affirmative burden to justify each figure. Weigh that against the cost exposure illustrated by Bruno v. Hopkins (2022) 79 Cal.App.5th 801 before filing objections that cannot be supported.

In re Estate of Rossi, 138 Cal. App. 4th 1325 (2006)

(Failure to attach the proposed pleading to a safe harbor application was not fatal to the court’s jurisdiction.)

An applicant’s failure to attach his or her proposed pleading to an application under Probate Code section 21320 — for a determination that a proposed action would not violate a given no contest clause — did not deprive the court of jurisdiction.

Statutory caution — procedure abolishedThe safe harbor procedure this case construes no longer exists. Probate Code section 21320 was repealed effective January 1, 2010 by SB 1264 (Stats. 2008, ch. 174), which repealed the whole of former Part 3 (commencing with section 21300) and substituted sections 21310 through 21315. A beneficiary can no longer obtain an advance declaration that a proposed filing will not trigger a no contest clause; the protection now comes from the probable cause standard in section 21311(b). Rossi is retained for historical context only. See Donkin v. Donkin (2013) 58 Cal.4th 412.

Zwirn v. Schweizer, 134 Cal. App. 4th 1153 (2005)

(A “creditor’s claim” alleging an oral contract to leave property was in substance a will contest, and violated the no contest clause.)

The nephew of a decedent’s late husband filed what he styled a creditor’s claim, asserting that the decedent and her husband had told him and others that on both their deaths he would receive 50 percent of their assets — in effect alleging that she had breached an oral contract with her husband by revising her estate plan after his death to favor her own blood relatives. The court held the claim constituted a will contest within the meaning of the no contest clause in the decedent’s will.

Statutory cautionDecided under the pre-2010 scheme. Under the current statutes a no contest clause reaches a creditor’s claim, or an action based on one, only where the clause expressly so provides (Probate Code section 21311(a)(3)), and a direct contest is penalized only if brought without probable cause (section 21311(a)(1)). The substance-over-form reasoning remains instructive, but the outcome would now be governed by the statute. See Donkin v. Donkin (2013) 58 Cal.4th 412.

Terry v. Conlan, 131 Cal. App. 4th 1445 (2005)

(A trustee who abandons neutrality in litigation over the trust’s management cannot have her attorney’s fees paid out of the trust.)

The trustee did not remain neutral in litigation concerning management of the trust, but consistently favored her own interests and those of some beneficiaries over those of others. Awarding fees to her attorney payable from trust proceeds was an abuse of discretion.

Compare DoolittleDoolittle v. Exchange Bank (2015) 241 Cal.App.4th 529 permits a trustee to fund a defense from the trust where the instrument expressly directs it. Terry v. Conlan is the counterweight: absent such a directive, a trustee who takes sides forfeits the trust’s support. Both bear on the same practical question — who pays.

David v. Hermann, 129 Cal. App. 4th 672 (2005)

(Trust and amendment invalidated on findings of fraud and undue influence by one sibling against their mother.)

An older sister successfully petitioned for invalidation of her mother’s trust and an amendment to it, based on a younger sister’s acts of fraud and undue influence.

Where it fitsAn early example of the intra-family undue influence contest that remains the most common pattern in this practice. The analysis is now framed by the statutory definition of undue influence in Welfare and Institutions Code section 15610.70, added by AB 140 effective January 1, 2014 and incorporated into the Probate Code by section 86.

Osornio v. Weingarten, 124 Cal. App. 4th 304 (2004)

(An estate planning attorney owed a duty to the intended non-client beneficiary, and could be liable for failing to advise the testator how to overcome the care custodian presumption.)

The testator intended to leave her estate to her care custodian. Her attorney did not advise her that the caregiver was presumptively disqualified, or refer her to independent counsel who could have prepared a certificate of independent review. The gift failed. The disappointed beneficiary sued the attorney, and the court held a duty of care was owed to her as the intended beneficiary — negligence in failing to advise the testator of the statutory consequences, and in failing to make the referral, was actionable.

Statutory caution and later authorityDecided under former Probate Code section 21350 et seq., repealed effective January 1, 2014; the certificate of independent review is now governed by section 21384. On the outer limit of an estate planner’s duty to non-clients, compare Grossman v. Wakeman (2024) 104 Cal.App.5th 1012 and Paul v. Patton (2015) 235 Cal.App.4th 1088.

Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771 (2004)

(The procedural hurdles for pleading punitive damages against a health care provider do not apply to an elder abuse claim under the Act.)

The procedural prerequisites to seeking punitive damages in an action for damages arising out of the professional negligence of a health care provider do not apply to a punitive damages claim alleging elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act.

Why it mattersWith Delaney v. Baker (1999) 20 Cal.4th 23, this is the pair that makes the Act meaningful against institutional defendants. Delaney establishes that reckless neglect escapes the ordinary limits on remedies against health care providers; Covenant Care removes the procedural gate standing in front of punitive damages.

Delaney v. Baker, 20 Cal.4th 23 (1999)

(A health care provider guilty of reckless neglect faces the Act’s heightened remedies, and cannot fall back on the limits protecting providers sued for professional negligence.)

A health care provider who engages in reckless neglect of an elder adult is subject to the heightened remedies available under California’s Elder Abuse Act, and cannot invoke the restrictions that ordinarily limit remedies against health care providers. The distinction drawn is between neglect — a failure of custodial care — and negligence in the delivery of professional medical services.

The foundation — and a recent changeDelaney is the decision that made the Elder Abuse Act a viable vehicle against facilities. Read with Covenant Care (2004) 32 Cal.4th 771 on procedure. Note also that AB 251 (Stats. 2025, ch. 433) added Welfare and Institutions Code section 15657.02, effective January 1, 2026, permitting a court to apply a preponderance standard to section 15657 remedies where a covered facility has committed spoliation of evidence.