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 stuck with proving the absence of undue influence. Should California take the same approach?

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Look Before Leaping Into an Anti-SLAPP Motion

Suing the suer is a common strategy in California civil litigation. A special motion to strike, known as an anti-SLAPP motion, can be a powerful weapon against retaliatory litigation.  We have explained the use of such motions in trust and estate disputes. More specifically, we have explored their application to petitions to enforce no contest clauses on multiple occasions.

A recent decision by the California Court of Appeal delves into this issue once again. Dae v. Traver (2021) 69 Cal.App.5th 447 illustrates just how difficult it can be to prevail on an anti-SLAPP motion, no matter how weak the no contest petition may seem to be. Lawyers should look before they leap into an anti-SLAPP motion that may be doomed to fail.

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Unilateral Severance of Joint Tenancy Must Be Unequivocal and Irrevocable

Can a California will sever a joint tenancy such that the decedent’s interest in real property passes per will’s terms instead of vesting in the surviving joint tenant(s)? Additionally, when a general partnership dissolves after the death of a partner’s spouse, does the deceased spouse’s estate have a community property interest in the distributed partnership assets?

The California Court of Appeal addressed these questions in Pearce v. Briggs (2021) 68 Cal.App.5th 466, a case arising from a blended family’s battle over Bakersfield real estate. The opinion casts doubt on when, if ever, a will may sever a joint tenancy. The opinion also shows how beneficiaries of a deceased spouse may have difficulty enforcing a community property interest in a general partnership operated by the surviving spouse.

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Trust Modification/Amendment Procedure Now Unsettled in California

[Editor’s Note: The California Supreme Court granted review of Haggerty v. Thornton on December 22, 2021 in Case No. S271483.  The Supreme Court is likely to resolve the conflict between Haggerty v. Thornton and King v. Lynch.  In the meantime, per the Supreme Court’s order, the Haggerty opinion remains citable.]

The Legislature and courts endeavor to create well-defined laws, lest we devolve into the governance of Emperor Nero, who reputedly posted edicts high atop columns so as to be painfully difficult for the masses to read. As Nero surely knew, clarity in the law is critical for people to know how to act, especially when far-reaching consequences are at play. But despite our government’s best intentions to post edicts in clear print and at eye-level, ambiguities in the law often emerge when statutes are scrutinized. As this post demonstrates, the statute concerning trust modification/amendment is no exception.

In Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, the Fourth District Court of Appeal challenged the Fifth District Court of Appeal’s opinion in King v. Lynch (2012) 139 Cal.App.4th 1186 over the contours of Probate Code section 15402, which concerns a settlor’s right to modify or amend a trust. Haggerty’s rejection of the rule of law established in King creates a split of authority. This game of thrones amongst the appellate “kingdoms” eventually may find its way to “King’s Landing,” i.e., the California Supreme Court.

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Making Peace in Mediation – A Conversation with Daniel Spector

Daniel Spector has litigated trust and estate cases in Northern California since the early 1990s. He is now focusing his practice on mediating trust and estate disputes across California, working with Judicate West. Dan is a colleague on the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, and I thank him for sharing his thoughts here.

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Fraud Claims May Reopen Court-Approved Accountings

Even a court order approving an accounting may not protect a California fiduciary if the accounting is inaccurate. That’s the upshot of Hudson v. Foster (2021) 68 Cal.App.5th 640, a recent California Court of Appeal decision involving a conservatorship.

The conservatee in this case consented to the conservator’s account and four years passed before the conservatee complained about its accuracy. The appellate court nonetheless revived the conservatee’s motion to vacate the order approving the account. When a fiduciary misrepresents facts in an accounting, a court order settling or approving the account won’t immunize the fiduciary from a challenge to the order on an “extrinsic fraud” theory.

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Zach Young, Second Generation Fiduciary, Helps Families with Transitions

Zachary Young is a private professional fiduciary with CMY Fiduciary Services in Sacramento.  His mother, Carolyn M. Young, began work as a fiduciary in 1986.  Zach received his bachelor’s degree in business and communications at Sacramento State University.  Zach joined his mother and sister, Lindsay Bowman, in the fiduciary business.  In 2012, he received his fiduciary license from California’s Professional Fiduciaries Bureau.

As he looks forward to continuing to help families with trusts, probate administrations, and conservatorships, Zach shared his thoughts with Trust on Trial.

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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 can become a “full house” of legal issues.

In Estate of Wall (2021) 68 Cal.App.5th 168, the Third District Court of Appeal in Sacramento ruled that the form of title presumption prevailed over the community property presumption, and yet the surviving spouse still prevailed on a theory of spousal undue influence.

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“California Trustee Removal Litigation and Mediation” Podcast

California trust disputes often involve allegations that trustees should be removed and suspended because they are acting improperly or have conflicts of interest.

Attorney Denise Chambliss, author of an informative article on trustee removal, spoke with me on Trust Me!, the podcast of the Trusts and Estates Section of the California Lawyers Association.  Joining us was Retired Judge Marshall Whitley, who handled many a trust dispute as an Alameda County Superior Court judge and now works to resolve conflicts as a full time mediator with ADR Services.

With apologies to the Sound of Music, how do you solve a problem like trustee-a?  Listen to the podcast, released today, here.  Rest assured, no actual singing is involved.

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Fog Warning – Has One Bad Actor Made It Harder to Get Evidentiary Hearings?

There’s a saying amongst attorneys that “bad facts make bad law.”  By extension, “really bad facts” can throw probate procedure into flux by making it harder to qualify for an evidentiary hearing.  That’s arguably what happened in Conservatorship of Farrant (2021) 67 Cal.App.5th 370, a decision issued this month by the California Court of Appeal.  And make no mistake, the facts in Farrant were terrible.

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