Can a disinherited person contest a trust amendment under California Probate Code section 17200?  No, said the Court of Appeal last August in Barefoot v. Jennings (2018) 27 Cal.App.5th 1.

The Barefoot opinion put pending trust contests in jeopardy, as contestants typically have used section 17200 as the procedural hook to challenge trust amendments that disfavored them.  Last week, however, the California Supreme Court granted review of Barefoot such that the opinion no longer has precedential value.

In Barefoot, Joan Lee Maynord amended her trust to disinherit her namesake daughter, Joan Marie Barefoot.  While Barefoot had been a beneficiary in the 16th amendment, Maynord disinherited her in the 17th through 24th amendments.  After Maynord died, Barefoot challenged the later amendments on mental incapacity, undue influence and fraud grounds.

Barefoot filed her petition under Probate Code section 17200, which allows “trustees and beneficiaries” to file petitions as to the internal affairs of a trust or to determine the existence of the trust.  The Court of Appeal found that Barefoot was not a “beneficiary” because she had been disinherited in the later versions of Maynord’s trust, and thus Barefoot lacked standing to litigate under section 17200 – in other words, no (procedural) shoes, no service.  Accordingly,  Barefoot would need another statutory basis to contest her mother’s trust amendments and the appellate court did not offer any roadmap of alternative paths.

While Barefoot petitioned for review by (i.e., appealed to) the California Supreme Court, several local bar associations in Southern California asked the Supreme Court to depublish the opinion.  In California, the Supreme Court can use depublication to strip lower appellate court opinions of precedential value without reviewing them, essentially a shorthand way that the high court can control the evolution of California law.

The Supreme Court found the issue sufficiently important that it chose to grant review in Case Number S251574.  The case will now be briefed at the Supreme Court.  On average, about two years pass from the time the Supreme Court grants review in a civil case to the issuance of a decision.   So we’ll have to wait a while to see what the Court does with Barefoot.  The opinion may have a major effect on how trust amendment contests are litigated in California.

For now, defenders of trust amendments may request dismissal of contests premised on Probate Code section 17200 on the standing theory, yet with depublication there is no longer clear guidance for a trial judge to follow.