Fore! California Court Drives Away Claim that Trustee’s Attorney Breached Trust

By Jeffrey S. Galvin on Posted in Beneficiaries, San Francisco County Superior Court, Trust Administration, Trustees

When attorneys advise errant trustees, how vulnerable are they to breach of trust claims by injured beneficiaries?  A case published last week by the California Court of Appeal provides a defensive roadmap to attorneys who are sued for such claims, along with an occasion for golf metaphors.

In Cortese v. Sherwood (2018) ___ Cal.App.5th ___, the appellate court ruled that attorney John Sherwood was protected by California Civil Code section 1714.10, which was enacted in 1988 to combat the use of frivolous conspiracy claims brought as a tactical ploy against attorneys and their clients.  Since the plaintiff failed to obtain the court’s approval before suing the attorney, as the statute required, she could not bring her claim against him.  She could not get off the first tee. Continue Reading

Why Contingency Fee Representation Is Hard to Obtain in Trust and Will Contests

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Legal Expenses, Mental Capacity, Undue Influence, Will/Trust Contests

Risk vs Reward

We often receive inquiries about whether we will represent parties in California trust and will contests on a contingency basis.  In contingency representation, the lawyer does not collect a fee unless the client obtains a favorable settlement or court judgment.  Contingency fees usually are structured on a percentage basis, with the lawyer receiving perhaps 25-40 percent of the value of the assets collected as specified in the fee agreement.

Generally we decline requests for contingency fee representation, choosing instead to represent contestants who can pay us on an hourly basis.  Why do we take this approach?  It’s tough, before litigation begins, to evaluate the risk and reward. Continue Reading

Don’t Let Time Run Out on Updating Your Life Insurance Beneficiaries

By Jeffrey S. Galvin on Posted in Beneficiaries, Divorce, Probate, San Mateo County Superior Court

Your ex-spouse may take under your life insurance policy if you do not change your beneficiaries and there’s nothing a California probate court can do about it.  So ruled the Court of Appeal last month in Estate of Post (2018) ____ Cal.App.5th ____. Continue Reading

Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise

By Jeffrey S. Galvin on Posted in Attorney-Client Privilege, Orange County Superior Court, Private Professional Fiduciaries, Trust Administration, Trustee Removal

The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel.  We blogged last year about an appellate opinion that reinforced this concept.

Last month, in Morgan v. Superior Court (2018) 23 Cal.App.5th 1026, the Court of Appeal found that a clause in a trust instrument expressly allowing a trustee to withhold attorney-client communications violates public policy and is unenforceable.  California estate planning attorneys take note: there is no way to draft around the rule that the attorney-client privilege stays with the office of trustee.

Continue Reading

Resolving California Trust and Estate Disputes – A Mediator’s Perspective

By Jeffrey S. Galvin on Posted in Conflict Avoidance, Mediation, Will/Trust Contests

Bette Epstein, Esq.

Many California trust and estate disputes are resolved by mediation instead of a final adjudication in the Superior Court.  Mediation can offer a custom-crafted resolution to a case that avoids the stress, expense and unpredictability of a trial.  When parties choose to mediate, there is often a deal to be found even if the positions seem polarized.

When is the right time to mediate and what are the keys to a successful outcome?  I asked lawyer Bette Epstein, who now mediates for ADR Services, to share her thoughts.

Bette grew up in the East Bay.  She received a Bachelor’s degree in Psychology from the University of Southern California, a Master’s degree in Counseling from Cal State East Bay, and law degree from USF School of Law.  She practiced in the San Francisco Bay Area, working at the law firm of Crosby Heafey Roach and May, which merged with Reed Smith.  She is a fellow of the American College of Trusts and Estates Counsel and a co-author of the CEB publication on Capacity and Undue Influence. Continue Reading

Mental Capacity Standards in California Civil Litigation

By Jeffrey S. Galvin on Posted in Evidence, Financial Elder Abuse, Mental Capacity, Will/Trust Contests

What mental capacity standards apply in California civil litigation?  Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville.  I’ll offer highlights here.

Short answer: it depends.  The mental capacity standard varies depending on the setting.  The policy rationale for the different standards is elusive, so as our clients present issues we focus on what standard governs instead of pondering why we have a hodgepodge of rules. Continue Reading

Stepmother vs. Stepchild, Now Playing in a California Probate Court Near You

By Jeffrey S. Galvin on Posted in Bank Trust Departments, Conflict Avoidance, Conservatorships, Divorce, Private Professional Fiduciaries, Trust Administration

Stepmothers are frequent characters in California trust and estate litigation, as they are in fairy tales and Disney movies.  With about half of all marriages ending in divorce, there are many stepmother/stepchild relationships.  Mostly they work out fine, but some go south.

After blogging on sibling conflicts as a driver of trust and estate disputes, I offer thoughts today about the litigation I see between stepmothers and stepchildren.  In Family Feud parlance, my personal survey says that step-parent relationships are a close second to sibling relationships as the setting of trust and estate litigation.  I’ll focus on stepmothers here, though of course stepfathers also often clash with their stepchildren. Continue Reading

Executor Can Swing Away at an Omitted Spouse Petition

By Jeffrey S. Galvin on Posted in Los Angeles County Superior Court, Probate

Born in Fresno, Kirk Kerkorian was an Armenian-American who went on to become a wealthy businessman and philanthropist, known for his role in shaping development in Las Vegas.  After Kerkorian died in June 2015 at the age of 98, his last wife Una Davis filed a claim for a third of his large estate as an “omitted spouse.”

Early this year, the California Court of Appeal ruled in Estate of Kerkorian (2018) 19 Cal.App.5th 709 that Kerkorian’s executor, his longtime business associate Anthony Mandekic, could defend against Davis’ claim, more broadly clarifying when executors can participate in petitions to determine entitlement to decedents’ estates. Continue Reading

New Judge in Sacramento County Superior Court Probate Department

By Jeffrey S. Galvin on Posted in Sacramento County Superior Court

This month Judge John P. Winn replaces Judge Steven M. Gevercer as the Supervising Probate Judge in Department 129 of the Sacramento County Superior Court, as part of judicial reassignments that occur each January.

Judge Winn will be handling a broad range of matters in Department 129, including trust disputes, probate administrations, conservatorships and guardianships.  Long cause trials typically are sent to downtown trial departments and are not heard in Department 129. Continue Reading

Sacramento Court: Only a Health Care Agent Can Contract for Placement in an RCFE

By Jeffrey S. Galvin on Posted in Advance Health Care Directives, Financial Powers of Attorney, Sacramento County Superior Court

Incapacity planning is a major component of an estate plan.  Quite often people name one person to serve as a health care agent and another person to serve as a financial agent.  What role does one agent have as opposed to the other in the context of contracting for medical services?

While the Probate Code does not provide a bright line, a recently-published California case explores the question in the context of the admission of a patient to a residential care facility for the elderly.  The Third District Court of Appeal, in Hutcheson v. Eskaton FountainWood Lodge (2017) ___ Cal.App.5th ___, found that the health care agent was the one authorized to admit the patient and the facility’s failure to obtain consent from that agent nullified an arbitration clause, thus exposing the facility to litigation in Superior Court. Continue Reading

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