Typewritten wills in California generally require the signatures of two witnesses to be found valid, but the harmless error rule can save the day. Probate Code section 6110(c)(2), as recently discussed, provides that a will not properly executed may be admitted to probate if the proponent “establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
Evidence
And the Rocket’s Red Glare – Trustee Removal Petitions May Be Costly to Those Who Launch Them
Trustee removal petitions, like Centennial Fountains, are one of the more common fireworks in California trust litigation. We’ve explored how such petitions are litigated in prior post and a podcast.
In Bruno v. Hopkins (2022) 79 Cal.App.5th 801, the California Court of Appeal broke new ground by finding that a beneficiary who…
Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?
California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to…
Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?
California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of proof? The disfavored sibling or the favored one?
Florida courts have decided that dutiful children, and spouses, should not be…
California Court Reconciles Ownership Presumptions in Probate Disputes
If Dad bought a house solely in his name, can Stepmother claim a community property interest after Dad has died? Perhaps yes. The answer lies at tricky intersections of California probate law and family law. While family law governs spouses during their lifetimes and upon divorce, the death of one spouse complicates the picture. It…
Immortal Right — Income Beneficiary’s Entitlement to Accounting Continues After Death
Many California trusts confer a lifetime right to income on a person (often the surviving spouse) with the remainder passing to designated survivors upon the income beneficiary’s death. When the income beneficiary dies, is it too late for the executor of the beneficiary’s estate to request an accounting for the purpose of evaluating whether the…
“Mental Health Disorder” Must Be Proven Along with Delusion
When are delusions enough to invalidate an estate plan? The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) 62 Cal.App.5th 112.
The case involves a 90-year-old woman who favored a charity and disinherited the two grandchildren with whom she had been close. The appellate court found that California…
SB 1146 Facilitates Remote Depositions and Electronic Service, But Leaves Challenges in California Trust and Estate Litigation
As we enter the eighth month of the COVID-19 pandemic, California courts and litigants continue to grapple with how to move civil cases forward.
Senate Bill 1146, approved by Governor Newsom on September 18, 2020, and effective immediately, facilitates the taking of depositions by allowing court reporters to attend remotely and enables electronic service…
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…
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) 9 Cal.5th 989, the Supreme Court held that “when reviewing a finding that a fact has been…