A recent California appellate opinion provides guidance on the interplay between applications for elder abuse restraining orders and special motions to strike (also known as anti-SLAPP motions). The opinion tells trial courts to consider applications for restraining orders, so as to protect seniors, even when anti-SLAPP motions are pending. We’ve written earlier about the Southern … Continue Reading
Here’s another reason (uno más in Spanish) to create and properly execute a will. If your spouse or other trusted designee lives out of the country when you die, he or she won’t be eligible to administer your California estate. The recent case of Estate of El Wardani (2022) 82 Cal.App.5th 870, involving a San … Continue Reading
California probate courts may appoint guardians ad litem (“GALs”) to represent the interests of those who cannot speak for themselves, including minors. While Probate Code section 1003 provides for the appointment of GALs, it does not speak to their removal. A recently published opinion, Chui v. Chui (2022) 86 Cal. App. 5th 929 (“Chui II”) attempts, … Continue Reading
Traditionally, the creation of a valid will, in California and elsewhere, required strict adherence to certain formalities. Estate law has been tepidly moving away from requiring compliance with those formalities, with a goal of prioritizing the intent of the person creating the will (the “Testator”). Nine states have gone so far as to enact laws … Continue Reading
What pea is in which pod? California probate disputes often involve questions of property ownership. Petitions filed under Probate Code section 850 allow judges to determine whether and to what extent an estate is the true owner of specified property. Yet how far can Section 850 petitions be stretched? In Parker v. Schwarcz (2022) 84 … Continue Reading
Operators of skilled nursing facilities want their patients to enter into arbitration agreements. While such agreements don’t eliminate the risk of litigation, they at least reduce the expense and exposure associated with potential jury trials. California appellate courts, however, have taken an ever narrower view of who can sign arbitration agreements on behalf of patients. Just … Continue Reading
Plaintiffs who sue for financial elder abuse run the risk that defendants will spend ill-gotten gains before they can be recovered. To address this problem, the California Legislature gave plaintiffs the opportunity to “attach” or freeze assets at the outset of a case. The Court of Appeal, in Royals v. Lu (2022) 81 Cal.App.5th 328, … Continue Reading
No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest is untimely. That’s the upshot of Meiri v. Shamtoubi (2022) 81 Cal.App.5th 606, a Court of Appeal opinion issued last week. An … Continue Reading
Narcotics Anonymous established a revocable trust to manage its literature and other intellectual property assets for the benefit of its many members. A “regional delegate group” filed a petition in Los Angeles probate court claiming that the trustee was breaching its fiduciary duties. The California Court of Appeal, in Autonomous Region of Narcotics Anonymous v. … Continue Reading
We write today about probate law, premarital agreements and the importance of doing your homework. In Estate of Eskra (2022) 78 Cal.App.5th 209, the First District Court of Appeal upheld a Humboldt County Superior Court decision to enforce as valid a premarital agreement that a surviving spouse signed without reading. How did the surviving spouse … Continue Reading
California trust disputes often involve the interests of parents and their minor children. Sometimes those interests conflict. When disputes are settled, who looks out for the interests of children under 18 years of age? Who checks that no child is left behind? Probate judges, as explained in a prior post, may appoint a guardian ad … Continue Reading
Can a California court stop others from changing an elder’s estate plan? Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust. In White v. Wear (2022) 76 Cal.App.5th 24, the Court of Appeal reviewed the issuance of an elder abuse restraining … Continue Reading
The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone sentence: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for … Continue Reading
We begin the year with a case, Riverside County Public Guardian v. Snukst (2022) ___ Cal.App.5th ___, involving an elder with dementia who received Medi-Cal benefits. The case, a blast from the past, illustrates how the State of California, under the law in effect until several years ago, could recoup the cost of such benefits … Continue Reading
We “ring” in 2022 with a recent case that again shows the long reach of statutory financial elder abuse claims in California trust and estate litigation. In Ring v. Harmon (2021) ___ Cal.App.5th ___, the Court of Appeal considered an alleged loan scheme to drain equity out of a house held in a probate estate. … Continue Reading
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 … Continue Reading
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? … Continue Reading
[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 … Continue Reading
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 … Continue Reading
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. … Continue Reading
While Disneyland may be the “Happiest Place on Earth,” a California probate court may be the opposite for a Disney heir, mused the U.S. Court of Appeals in Lund v. Cowan (9th Cir. 2021) 5 F.4th 964. Bradford Lund, a 50 year-old grandson of Walt Disney, sued the probate judge who rejected a settlement agreement … Continue Reading
Section 2030 of California’s Family Code provides an important safeguard to ensure the fairness of marriage dissolution proceedings. It allows the Court to order a more financially well-off party to pay some or all of the other party’s attorney fees, beginning as early as the start of the proceedings. Section 2030 was enacted to put … Continue Reading
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 … Continue Reading
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 … Continue Reading
A recent California appellate opinion provides guidance on the interplay between applications for elder abuse restraining orders and special motions to strike (also known as anti-SLAPP motions). The opinion tells trial courts to consider applications for restraining orders, so as to protect seniors, even when anti-SLAPP motions are pending. We’ve written earlier about the Southern … Continue Reading
