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)  17 Cal.App.5th 937, 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

Doctors Who Disobey Health Care Agents in California May Be Liable for Elder Abuse

By Jeffrey S. Galvin on Posted in Advance Health Care Directives, Estate Planning, San Bernardino County Superior Court

A recent California appellate case, Stewart v. Superior Court (2017) 16 Cal.App.5th 87, validates the primacy of medical powers of attorney and (as they are more currently known) advance health care directives.  Medical providers who disregard the instructions of duly-appointed health care agents by providing unauthorized treatment may be liable in California for elder abuse in addition to medical malpractice.

We focus our blog on the financial aspects of California trust and estate disputes.  But, as we increasingly become involved in “parent custody” fights and other conflicts over the care of elder and dependent adults, it is important to understand the authority vested in an agent under a health directive. Continue Reading

Play It Again: No Contest Clauses Must Be Referenced In Each California Trust Amendment

By Tyson E. Hubbard and Silvio Reggiardo, III on Posted in Appeal, Beneficiaries, Estate Planning, Inheritance Disputes, No Contest Clauses, Trust Administration

No contest clauses are an ever-evolving area of the probate law in California.  The Court of Appeal further refined the rules governing no contest clauses in a decision issued last week, Aviles v. Swearingen (2017) 16 Cal.App.5th 485.  In brief, in order for a no contest clause to apply to a trust amendment, the no contest clause must be stated in the amendment or the amendment must expressly reference the no contest clause set forth in a prior document.

The takeaway from the case for estate planners is that if your client wants a no contest clause, then you must mention the no contest clause in every trust amendment that you draft for the client.  It is not good enough to simply include a no contest clause in the client’s trust and then refer back to that trust, generally, in later amendments.  Each subsequent amendment must either contain its own no contest clause or must expressly reference the no contest clause of the original trust instrument. Continue Reading

Anti-SLAPP Case Features Arm Wrestling Siblings and a Prep School

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Legal Expenses, No Contest Clauses, Probate, Trust Administration, Will/Trust Contests

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. Continue Reading

When Is a Will Valid in California?

By Tyson E. Hubbard on Posted in Estate Planning, Probate, Will Execution, Will/Trust Contests

Although much wealth passes today through trusts and beneficiary designations, we occasionally handle California probate disputes that turn on the validity of wills, sometimes involving high value estates.

The standard practice in California estate planning is for wills to be typewritten and prepared by attorneys, but those steps are not necessary.  A holographic, i.e., handwritten, will can have just the same effect. Continue Reading

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