Recently in Trusts & Estates Law Category

In plaintiffs' suit against the defendant-Newman Trust for breach of fiduciary duty based on fraud, summary judgment for defendant is affirmed as the Code of Civ. Proc. section 366.2 period of limitations is applicable to fraud claims based on statements of the decedent on behalf of a trust of which he was trustor and trustee, even though the action is against the successor trustee.     

Read 1680 Prop. Trust v. Newman Trust, No. B207613 [HTML]

Read 1680 Prop. Trust v. Newman Trust, No. B207613 [PDF]

Filed November 17, 2009

Judges

Opinion by Judge Mosk

Counsel
For Appellant: Law Offices of Richard A. Love, Richard A. Love, and Beth A. Shenfeld

For Appellee:  The Vittal Law Firm and J. Anthony Vittal

In plaintiff's suit against defendant alleging undue influence on the trustee to breach a trust of which plaintiff was a beneficiary, judgment in favor of defendant is reversed and remanded where: 1) the court erred in determining that plaintiff did not have standing to sue defendant for her role as a third-party participant in a trustee's breach; 2) the trial court erred in failing to consider and make the necessary findings as to whether plaintiff could recover from defendant under a theory that, after the trustee's death, defendant became a trustee de son tort, and thus had duties to the trust beneficiaries, which she breached; and 3) plaintiff may recover from defendant for defendant's breach of trust after the trustee's death. 

Read King v. Johnston, No. D054136 [HTML]

Read King v. Johnston, No. D054136 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Aaron

Counsel

For Appellant:  Glenn, Wright, Jacobs & Schell and Ralph E. Hughes

For Appellee:  Law Offices of William F. Roche and William F. Roche

In proceedings involving an arbitration petition by one co-trustee of a family trust and plaintiff-co-trustee's petition to enforce a no contest clause, appellate court's judgment against defendant-co-trustee is reversed as a challenge to a surviving spouse's mental capacity to transfer trust assets and appoint a successor trustee did not violate the no contest clause in a family trust. A proceeding contesting a settlor's mental competence to exercise rights under a trust does not amount to an attack on the trust itself, unless it seeks to thwart the estate plan established by the trust. 

Read Johnson v. Greenelsh, No. S166747 [PDF]

Read Johnson v. Greenelsh, No. S166747 [HTML]

Appellate Information
Appeal from San Luis Obispo County Super. Ct. No. PR050017

Filed October 29, 2009

Judges
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by CORRIGAN, J.

Counsel
For Appellant: Sandra Waite, David P. Weilbacher

For Appellee:  George-Cyr, LLP, Keith George, Ann C. Cyr

Probate court's order determining that settlor's revocation of a trust is ineffective due to his lack of capacity is affirmed as the certifications of mental competence are insufficient because neither physician who found mental competence was aware of the earlier certifications of mental incompetence. 

Read Rands v. Rands, No. B208062 [PDF]

Read Rands v. Rands, No. B208062 [HTML]

Filed October 27, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  Law Offices of Tamila C. Jensen, Tamila C. Jensen

For Appellee: Benton, Orr, Duval & Buckingham, Thomas E. Olson, Maureen M. Houska

In an action involving the removal of a trustee of a life insurance trust established to provide for petitioner's son and his brother, trial court's orders denying respondent-trustee's objections, approving a third guardianship accounting petition, and ordering trustee to pay petitioner compensatory damages in the amount of $77,573.40 is affirmed as trial court did not abuse its discretion in overruling trustee's objections, nor in finding unreasonable and bad-faith assertion of meritless objections in awarding the compensatory damages.     

Read Guardianship of K.S., No. H032581

Filed September 30, 2009

Judges

Opinion by Judge Rushing

Counsel

For Appellant:  WealthPLAN, Frances B. Doyle

For Appelle:  Law offices of Kenneth C. Moore, Kenneth C. Moore, Law Offices of John H. Coward, John H. Coward

In an appeal involving presumptive disqualification of a care custodian from receiving a donative transfer from a dependent or elder adult, trial court's judgment against the daughter of comedian Richard Pryor and in favor of stepmother is affirmed as there is no support in the language of section 21351(a) or in the legislative history which would make the spousal exception to the presumption of invalidity unavailable to a spouse who allegedly persuaded the transferor to marry through undue influence or fraud.     

Read Estate of Pryor, No. B207402

Appellate Information

Filed September 29, 2009

Judges

Opinion by Judge Epstein

Counsel

For Appellant:  Holland & Knight, Bruce S. Ross, Linda Rottman and Vivian L. Thoreen

For Appelle:  Kibre & Horwitz, Howard L. Horwitz and Eric G. Stockel

Probate court's finding that beneficiary's pleading violated the no-contest clause provision of the Trust, thereby causing his disinheritance pursuant to the Trust terms is affirmed as beneficiary's argument that his debt is unenforceable violates the trust's no-contest provision. 

Read Cook v. Cook, No. B205793

Filed September 29, 2009

Judges

Opinion by Judge Gilbert

Counsel

For Appellant:  The Law Office of John Derrick, John Derrick

For Appelle:  Law Offices of Mary P. Kulvinskas, Mary P. Kulvinskas; Law Offices of Robert H. Pourvali, Robert H. Pourvali

Trial court's judgment denying appellants' petition to determine survival and to determine persons entitled to distribution of the estate of their grandmother is reversed and remanded where: 1) although the trial court was correct in finding that the will contained no survivorship requirement, it erred in denying appellants' petition on this basis as it did not understand the legal consequences of the lack of survivorship requirement in the will; and 2) the trial court should have held an evidentiary hearing on the issue of testator's son's time of death.   

Read Estate of Lensch, No. A123296

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Haerle

Counsel

For Appellant:  Margaret M. Hand 

For Respondent: Elliot L. Bien, Catherine S. Meulemans, Bien & Summers, Afred S. Wilkins, Elizabeth W. Johnson, WIlkins & Johnson

In an appeal from a probate court's determination that a petition plaintiffs proposed to file against defendant seeking information regarding his conduct as trustee of a trust would not violate the no contest provision of the trust agreement, the order is affirmed where the proposed petition did not seek to do more than enforce defendant's nonwaivable fiduciary duty under Probate Code section 16060.

Read Salter v. Lerner, No. A121525

Appellate Information

Filed August 19, 2009

Judges

For Appellant:

Keith P. Bartel, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, CA

John D. Minton, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, CA

For Respondent:

Jon B. Eisenberg, Eisenberg & Hancock, Oakland, CA

William N. Hancock, Eisenberg & Hancock, Oakland, CA

Petition by writ of mandate seeking to vacate an order disqualifying plaintiff from serving as attorneys for any party in the probate action pending before the trial court is granted where the court erred in finding that the law firm had a conflict of interest in representing both the executor and the beneficiary under the circumstances presented.          

Read Baker Manock & Jensen v. Superior Court of Fresno County, No. F056973 in PDF

Read Baker Manock & Jensen v. Superior Court of Fresno County, No. F056973 in HTML

Appellate Information
ORIGINAL PROCEEDING; petition for writ of mandate. Debra J. Kazanjian, Judge.
FIFTH APPELLATE DISTRICT
Filed July 22, 2009

Judges
Before VARTABEDIAN, Acting P.J., HILL, J., KANE, J.
Opinion by VARTABEDIAN, Acting P.J.

Counsel
For Petitioner: Robie & Matthai, Edith R. Matthai and Steven S. Fleischman.
For Real Party in Interest: Chielpegian Law Offices, Elliott D. Chielpegian, Michael S. Chielpegian and Lee S. W. Cobb.