Temporary Conservators May Lack Authority to Sign Contracts for Conservatees

Can a temporary conservator of a person effectively sign paperwork that admits the conservatee to a California senior living facility subject to an arbitration agreement?  Only if the temporary conservator has special authorization to do so.

Holley v. Silverado Senior Living Management, Inc. (2020) ___ Cal.App.5th ___, decided in August, is a cautionary tale for operators of senior living facilities.  Even if a son or daughter has court papers establishing his or her appointment as conservator of mother’s person, the son or daughter may not be able to bind mother to an arbitration agreement that is included in the admissions paperwork. Continue Reading

Showdown at the O.K. Corral – The Battle of the Omitted Heirs

Providing for your children is one of the primary purposes of estate planning, but what happens to your carefully crafted trust if you had children you did not know about when you created the trust?  Or, what if you have children after you create your trust but never get around to amending the trust to include them?  In the trust and estate world, these children are often referred to as “omitted heirs.”

While Probate Code sections 21620-21623 generally provide answers to these questions, how they apply in real life is not always clear.  Thankfully, the California Court of Appeal recently provided a real world example of how these rules work in Rallo v. O’Brian (2020) ___ Cal.App.5th ___.  The case involved the trust of Hugh O’Brian, an actor famous for playing Wyatt Earp in the television series The Life and Legend of Wyatt Earp, which ran from 1955-1961.

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Memo to #FreeBritney Fans: How California Conservatees May Challenge Their Conservators

For more than a decade, some of Britney Spears’s most devoted fans feared that she was locked up against her will under a court-ordered conservatorship, even going as far to accuse her father, Jamie Spears, of drugging her to take control.  In response, fans launched #FreeBritney, a viral social media campaign, aimed at having Britney’s conservatorship investigated and terminated.  A Change.org petition dedicated to the #FreeBritney movement amassed over 100,000 signatures.

#FreeBritney believers may have finally reached the Princess of Pop herself.  According to a recent New York Times article, Britney’s attorney filed papers informing the Los Angeles County Superior Court that Britney is now “strongly opposed” to the conservatorship.  This serves as a good reminder that all conservatees have the power to challenge their conservatorships. Continue Reading

Clear and Convincing Evidence Standard Continues to Apply in California Appeals

Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard.

In Conservatorship of O.B. (2020) ___ Cal.5th ___, the Supreme Court held that “when reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true.”  In other words, the high bar of clear and convincing evidence continues to be the standard on appeal.

The clear and convincing evidence standard applies to quite a few categories of California trust and estate disputes.  Conservatorship of O.B. seems to invite closer appellate review of trial court decisions and thus could lead to more appeals and perhaps even greater success on appeal. Continue Reading

En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation

Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die.  It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes should they become vulnerable to undue influence.  Among these safeguards are revocation procedures, which may require that a revocation document be signed by a particular person and/or delivered to the trustee.

The California Legislature has, however, codified its own “default” method of revocation, allowing – under Probate Code section 15401(a)(2) – a trust to be revoked by a writing signed by the trustor and delivered to the trustee during the trustor’s lifetime.  But what happens when the trustor’s chosen revocation procedure is stricter than that permitted under section 15401(a)(2)?  Must the trustor follow his chosen revocation procedure, or is he or she permitted to simply comply with the Legislature’s default method?  In Cundall v. Mitchell-Clyde (2020) __ Cal.App.5th __, the Second District Court of Appeal held that for a trust’s revocation procedure to be the exclusive revocation method, it must expressly specify that it is the only such method. Continue Reading

Home Sweet Home – California Legislature Aims to Safeguard Conservatee Residences

Effective January, 1, 2020, the Legislature changed California conservatorship law with respect to the personal residences of conservatees.  Senate Bill 303 attempts to protect conservatees by making it harder to relocate them from and sell their residences.  Proponents argued that existing law made it too easy for conservators to liquidate the homes of conservatees.  The Judicial Council of California unsuccessfully requested a veto, raising competing policy concerns.

Since many California conservatorships involve an elder who lives at home, or who potentially could return home, the new law has become an important part of the conservatorship landscape. Continue Reading

Guardian of the Galaxy – What is the Role of a Guardian Ad Litem in Trust and Estate Disputes?

Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets.  But many disputes, or at least potential disagreements, involve people who can’t fend for themselves, such as mentally incapacitated adults, children, or even unborn potential beneficiaries who are a glimmer in the mind’s eye.

In such a situation, a probate judge may need to appoint a guardian ad litem or “GAL” to act as a surrogate decision maker.  In prior posts, we’ve touched on situations where appointment of a GAL may be helpful or required.  Here we aim to hit the nail on the head. Continue Reading

How Does Amended California Emergency Rule 9 Affect Probate Proceedings?

(Editor’s Note: The example in the post below has been revised.)

California causes of action are subject to various statutes of limitation.  Unless a plaintiff or petitioner files a complaint or other document asserting a cause of action within the applicable limitations period, the filing will be deemed time barred and subject to dismissal.  Under some circumstances, however, statutes of limitation may be tolled or suspended so as to extend the filing period.

When the COVID-19 pandemic caused court closures, the California Judicial Council responded with Emergency Rule 9, which tolled the statutes of limitation for civil actions from March 6, 2020 until 90 days after the Governor lifts the state of emergency, which will not occur until an unknown future date.

The initial emergency rule, issued April 6, has now been revised and partially clarified.  As California courts began to reopen in May, the Judicial Council chose to put a clearer endpoint on the tolling of limitations periods.  A memorandum from the Judicial Council provides background on the amended rule. Continue Reading

California Powers of Appointment: Follow Instructions When Exercising

In California, a trustor (person who creates a trust) can confer a “power of appointment” on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust.  The trustor can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to designate who should get their shares of the trust.

What happens if a trust beneficiary creates a will that gives away his or her trust shares without specifically referring to the power of appointment as required by the trust?  Can a California probate court fix the defect by amending or reforming the will to include a specific reference to the power?

The California Court of Appeal answered this question in the negative in Estate of Eimers (2020) ___ Cal.App.5th ___.   The court held that, although reforming a will is permissible if extrinsic evidence establishes a testator’s intent, a will cannot be reformed if it would achieve a work-around of the power of appointment requirements in the Probate Code.  In short, a court cannot reform a will when the testator fails to follow the directions for exercising a power of appointment. Continue Reading

What California Trust and Estate Litigation Will Arise from the Economic Downturn?

The COVID-19 pandemic has idled workers and the coming weeks will bring more news of business closures and bankruptcies.  After a decade of sustained growth, we are facing a recession of uncertain depth and duration.  The New York Times recently reported that some Americans are turning (or perhaps returning) to “financial therapy” for support.

In the trust and estate world, how dark are the approaching storm clouds?  More specifically, how might the economic downturn cause California trust and estate litigation?  From this blogger’s perspective, claims are likely to increase as a result of declining asset values, growing demands for trust distributions, and anxiety associated with economic insecurity.  As always, however, allegations are easier to make than to prove. Continue Reading

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