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
California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder. Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses.
The opinion reminds California trust and estate counsel to be cautious when using petitions to attack the court filings of other parties. At the same time, the opinion demonstrates that a well-conceived attack on an adversary’s filing ultimately should not fall to an anti-SLAPP motion, even if it takes an appellate court to set things right.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” To discourage and weed out such suits, the Legislature created a special procedure to challenge them. Last year we wrote about the use of anti-SLAPP motions as a defensive tool in trust and estate litigation. We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example. With Urick, we now have published authority in California for guidance.
Sound estate planning requires a clear description of how property will pass upon death – in other words, who gets what. So what happens when the written terms differ from what the will’s creator actually wanted?
Earlier this year, the California Supreme Court ruled in Estate of Duke (2015) 61 Cal.4th 871 that courts may correct a mistake in the wording of a will even if the language in question is not ambiguous. The proponent of the correction (also known as reformation) must provide clear and convincing evidence of both (1) a mistake in the expression of intent and (2) the actual specific intent of the maker when the will was written. The decision opens the door in California to a new kind of trust and estate litigation.