McLe Self-study Article Beyond Barefoot – Standing In Trust, Estate, Elder Abuse and Related Litigation

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MCLE SELF-STUDY ARTICLE BEYOND BAREFOOT – STANDING IN TRUST, ESTATE, ELDER ABUSE AND RELATED LITIGATION

Written by Dave G. Knitter, Esq. and Kelsey I. Knitter, Esq.*

In trust, estate, and elder abuse litigation, standing is often complicated and may bar a party from pursuit of their claim. Establishing standing is a prerequisite to pursuit of any court action. The issues and analyses vary in different types of actions and depend on what position the party holds in the dispute. This article provides an overview of many common standing issues that arise in the trust, estate, and elder abuse context, as well as conservatorships and appeals.

I. FUNDAMENTALS OF STANDING: THE CIVIL RULE VS. THE PROBATE RULE

While standing is an element of every claim,1 in California, there are two bodies of law which provide authority for standing: the Civil Rule and the Probate Rule.

The Civil Rule, governed by California Code of Civil Procedure section 367, provides that "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute."2 A "real party in interest" has been defined as one who has an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.3 In examining or arguing standing, this foundational standing rule should always be considered. If a party’s interests are affected, the party should be allowed to participate in the proceeding even if the Probate Rule does not specifically provide for standing, since the party’s rights and interests are being adjudicated.

The Probate Rule is created through a variety of statutes indicating in what particular circumstances a person has standing. Probate Code section 48 provides a specific detailed definition of an "interested person" who can "make a response or objection in writing at or before the hearing."4 An interested person is: "(1) an heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding; (2) [a]ny person having priority for appointment as personal representative; (3) [a] fiduciary representing an interested person."5

The meaning of interested person may vary from time to time because it is determined according to the "particular purposes of, and matter involved in, any proceeding."6 Therefore, a party may be an interested person in one capacity for purposes of one proceeding but not for another.7

Courts have interpreted the Probate Rule as applying only to pecuniary interests in the devolution of the estate that may be impaired or defeated by probate of the will or benefitted by having it set aside.8 An executor who is left nothing is not an interested person in this context.

Unless the Probate Code specifically provides who has standing in a particular matter, Code of Civil Procedure section 367 arguably applies.9 Notably, Probate Code section 48, subdivision (b), provides the court with greater flexibility in determining standing than standing as provided pursuant to the Code of Civil Procedure. As noted, a person may be an interested party in one capacity or for purposes of one proceeding, but not for another.10

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Standing for claims after death depends on the nature of the claim. Successors in interest, heirs, trustees, and personal representatives may have standing to bring a claim after death depending on the nature of the claim. A successor in interest is a "beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action."11

II. STANDING TO CONTEST A WILL

A petition for revocation of a will admitted to probate may be filed by "any interested person" other than a party to a will contest or a person who had actual notice of a will contest in time to have joined in the contest.12 An "interested person" who may contest a will is one who has such an interest as may be impaired or defeated by the probate of the will, or benefitted by setting it aside.13

Although the definition of interested party is broad, it is limited in one significant aspect: the party must have a property right affected by the lawsuit. The status of heir or beneficiary alone is not enough to make a party an "interested person."14 As the court has noted, "an interested person is one who has such a pecuniary interest in the devolution of the testator’s estate as may be impaired or defeated by the probate of the will or be benefitted by having it set aside."15

Under a will, there can be a variety of interested persons as discussed below.

A. Beneficiaries

If a beneficiary has a property right in or claim against the estate of a decedent which may be affected by the proceeding, the beneficiary is an "interested person" with standing to participate in the contest.16

A beneficiary under a later will has standing to contest an earlier will if the beneficiary’s interest might be impaired or defeated by probate of the earlier will.17 The preferable procedure to contest an earlier will is to consolidate the proceedings to probate both wills.18

A beneficiary under an earlier will, whose interest may be impaired or defeated by a later will has standing to contest the later will, even though the beneficiary would not take by intestate succession if the contested will were set aside.19The contestant may contest the later will without first obtaining probate of the earlier will.20

Beneficiaries have standing even if they are only entitled to the remainder of the estate, which may result in no distribution. Estate of Plaut provides an example of the application of this principle.21 In Plaut, the decedent was survived by his daughter and her two children.22 Two months before Plaut’s death, he added a codicil to his will giving his nurse $15,000.23 Plaut’s granddaughter, the residuary legatee, sought to revoke the probate of the codicil on the grounds of undue influence.24 The court held that, although the granddaughter may never take any part of the estate, she should be allowed to contest any testamentary disposition likely to impair her legacy as a remaindermen.25

The right to contest is extended to a beneficiary under an earlier will that has been lost or fraudulently destroyed or destroyed by another without the testator’s knowledge or consent.26 A will contestant who derives standing from an earlier will may, if the contestant’s interest is expressly challenged, be required to establish standing before proceeding to trial to contest the later will.27

To establish standing, courts require that petitioner prove the lost or destroyed will was in existence at the time of the testator’s death or that it was fraudulently destroyed.28 In proving the existence of a lost will, contestants must make a prima facie showing that they have some reasonable expectation of being able to probate the lost will.29 How much is required to establish a "reasonable expectation" is unclear. At least one court has found that it is not sufficient to allege a claim "upon very vague hearsay."30 Without a prima facie showing of a lost or destroyed will, a contestant unrelated to decedent will lack standing.

B. Intestate Heirs

Intestate heirs are those who will take any part of the estate which is not effectively disposed of by will.31 Because the interests of intestate heirs are affected by any will, they are always interested persons for purposes of a will contest.

The court upheld this principle in Estate of Robinson.32 In that case, respondents argued that the testator’s heirs did not have a valid interest that would enable them to challenge the will because they would not gain more by revocation of the will; a valid prior will provided them with the same or lesser bequest than the challenged will.33 The court held the heirs had a sufficient interest to challenge the will, despite the fact they would not gain more by revocation.34 Because they could take by intestate succession as heirs, either in whole or in part, any will making a disposition of the decedent’s property then invades their interest as heirs.35 The fact that a prior valid will granted the same bequest to the contestants did not invalidate the heirs’ interest in the action. The heirs could contest the prior wills if offered for probate.36

Probate Code section 6401 defines heirs at law for purposes of intestate succession. This definition includes a variety of individuals, based on who is living at the time of the decedent’s death.

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Under section 6401, when a decedent dies without a will, the surviving spouse will take in whole or in part. If the decedent did not leave any surviving issue, parent, sibling, or issue of deceased sibling, the surviving spouse will take the entire estate.37 The surviving spouse will take half of the separate property intestate estate if the decedent leaves only one child or the issue of one deceased child, or if the decedent leaves no issue, but leaves a parent or the issue of said parent.38 The surviving spouse will take one-third of the separate property intestate estate if the decedent leaves more than one child or the issue of one or more deceased children.

In Estate of Sobol, the Court of Appeal found that a testator’s nephew was not an "interested person" because he had no property right in or claim against the trust estate.39 According to the court, the status as heir or beneficiary, by itself, is not enough to make a party an "interested person" with standing to participate in the will contest.40 Notably, the court found that the probate court had discretion to consider on its own motion whether a codicil was procured by undue influence—though it has no duty to do so.41

Intestate heirs can include: spouses, parents, stepparents, brothers, sisters, stepbrothers, stepsisters, half-brothers, half-sisters, uncles, aunts, nieces, nephews, first cousins, or any person denoted by the prefix "grand" or "great." However, an omitted child is generally not an interested person for purposes of a will contest because the omitted child will take by statute notwithstanding the will.42

C. Standing Related to Appointment of Personal Representative

Probate Code section 8000, subdivision (a), states that any person interested in an estate has standing to initiate or join litigation concerning who should be appointed as personal representative.43 However, while section 8004 does not expressly state who has standing to file an opposition, it is accepted that 8004 is a restatement of former sections 379 and 442,44 which require that a person be interested in the estate in order to challenge the appointment of a personal representative.45 Since the meaning of "interested person" varies "according to the particular purposes of, and the matter involved in, any proceeding,"46 a party’s standing when objecting to the appointment of a personal representative requires a separate analysis.

In Estate of Lyons, the court clarified this principle when it held that a son did not have standing to oppose a petition of his father’s estate. The son was the administrator of his aunt’s estate and in this capacity sought to appeal an order appointing respondent as administrator of his father’s estate.47 While the court recognized that individually, as an heir, appellant was interested in the estate and had a right to appeal, he lacked standing in his capacity as administrator of his aunt’s estate, because her estate did not claim to be a beneficiary of the estate.48

III. TRUST LITIGATION

Statutory standing for trust contests is found in Probate Code sections 15800 and 17200. In trust contests, the general rule is that a beneficiary or trustee has standing to determine the validity of an instrument under Probate Code section 17200.49 Probate Code section 17200, subdivision (b), specifically includes a list of the types of proceedings included in the "internal affairs of the trust."50 This list is not exhaustive.

This rule is tempered by Probate Code section 15800 which states that, while a trust is revocable and the person holding the power to revoke is competent, the person holding the power to revoke has standing, not the beneficiaries. Probate Code section 48 also includes in its definition of interested person "any other person having a property right in or claim against a trust estate."51 The dichotomy between these statutes has posed a number of issues for courts when determining standing.

A. General Rules of Standing When the Settlor is Deceased

When the settlor of the trust is deceased and the trust is irrevocable, Probate Code section 17200 applies. Section 17200 provides that a trustee or beneficiary of a trust has express standing to bring a petition to challenge a trust or amendment.52

1. Trustees

When trust property is involved, the trustee is the real party in interest with standing to bring an action.53 In litigated matters, the trustee is the proper party as plaintiff or defendant, since the trust may not sue or be sued in its own name.54 Some actions brought directly by a beneficiary can be subject to dismissal unless an exception applies.

If a trust has more than one trustee, any co-trustee will have standing to sue the others to enforce their fiduciary duties.55 A successor trustee will also have standing to take reasonable steps to redress a breach committed by a predecessor trustee.56 However, when a predecessor trustee is sued, successor co-trustees must act unanimously, unless the trust provides otherwise.57

2. Beneficiaries

Although the trustee is generally the proper party to bring a claim regarding the trust, a beneficiary will have standing when the trustee has failed to protect the

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beneficiary’s interests.58 The court has held that if a personal representative or trustee fails to take action to protect the interests of a beneficiary, the beneficiary "may enforce his rights by a suit in which the third person and the trustee are joined in order that the claim may not be lost or prejudiced."59 This means a beneficiary has standing to pursue a claim against a trustee or a third party.60 Other courts have found that "there is no requirement that the third party stand in a fiduciary relationship with the trust or intentionally direct misrepresentations or other wrongdoings at the beneficiaries."61

The definition of "beneficiary" has historically been construed broadly to include anyone with a vested or contingent right to present or future distributions.62 This includes anyone who is eligible to receive distribution, even if only at the discretion of the trustee. Successors in interest will also have standing as a "beneficiary."

To have standing to assert a claim against a trustee, the beneficiary must establish that the trustee’s failure to act was negligent, wrongful, or otherwise improper.63 This right to sue a trustee is broad. In Bellows v. Bellows, the court held that a beneficiary had standing to continue proceedings against a trustee despite having cashed a distribution check that was tendered as a "final distribution."64

Courts have generally found that a beneficiary also has standing to sue a former trustee for breach of trust.65 In Estate of Bowles, the court held that because beneficiaries have the right to sue current trustees, and there is nothing in the code to indicate that this right is limited only to current trustees, beneficiaries can sue predecessor trustees.66

3. Third Parties

Third parties may bring suit on behalf of a beneficiary in certain circumstances. For instance, a conservator, guardian, or agent with a power of attorney may bring suit on behalf of an incapacitated beneficiary.67 A personal representative of a deceased beneficiary will also have standing to bring suit.68 If estate property is involved, the proper party to commence and defend actions and proceedings is the personal representative.69

B. Standing When the Settlor is Alive: Section 17200 vs. Section 15800

The general rule under Probate Code section 15800 is that a trustee of a revocable trust owes fiduciary duties only to the person who holds the power to revoke the trust who, in turn, has the rights afforded beneficiaries.70 If the settlor is a beneficiary of the trust, or the settlor has reserved the power to revoke the trust, then the settlor will have standing to pursue a claim against the trustee to protect that interest.71 Beneficiaries do not have standing while the settlor is alive because a beneficiary’s interest in the property of the revocable trust is " ‘merely potential’ and can ‘evaporate in a moment at the whim of the [settlor].’ "72

However, while Probate Code section 15800 provides that while the settlor is alive and competent, only the person holding the power to revoke is afforded standing, there are exceptions to the general rule. The landmark cases speaking to this exception are as follows.

1. Estate of Giraldin

The first case to extend standing to a beneficiary of a revocable trust during the period while the settlor was living was Estate of Giraldin.73 In this case, settlors created a revocable trust and designated their son to serve as trustee.74 After the first settlor had died, the sibling beneficiaries of the trust petitioned to remove the trustee, compel the trustee to account for his actions during the period of his trusteeship, and surcharge him for violations of fiduciary duty.75 However, because the other settlor was still alive, the trustee argued that the beneficiaries’ interests were contingent and therefore they did not have standing until such time as their rights vested.76

The court held that the fact that the trustee owes no duty to the remainder beneficiaries while the trust remains revocable does not retroactively change after the settlor dies.77 Had the beneficiaries brought the action only for breach of duty owed to them, the court would have dismissed the case for lack of standing. However, because the action concerned the alleged breach of duties toward the settlor during his lifetime, remainder beneficiaries did have standing.78

Ultimately, although a beneficiary lacks standing to sue for breach of trust while a settlor who holds power to revoke is alive and competent, after the settlor has died and the trust has become irrevocable, the beneficiary may bring suit for violations of breach of fiduciary duties to the settlor that harmed the beneficiary’s interest.79

2. Drake v. Pinkham

Drake v. Pinkham involved a trust dispute between two sisters that arose both during the settlor’s lifetime and following her death.80 In Drake, the settlor had amended her revocable trust while alive.81 Two of those amendments left the petitioner entirely disinherited with her sister in control of the trust.82 In 2005, Petitioner decided, instead of contesting the fourth and fifth amendments, to settle the case.83 Five years later, following the settlor’s death, Petitioner brought suit to contest the validity of the amendments citing Probate Code section 17200.84 In response, Respondent (Petitioner’s sister) raised several

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affirmative defenses related to the untimeliness of the lawsuit (i.e., Petitioner should have made these allegations back in 2005). Petitioner responded by arguing she did not have standing to pursue a section 17200 petition back in 2005.85

In holding for Respondent, the court determined that Petitioner’s delay was unexcused. In examining section 17200 and section 15800, the court found that "a beneficiary lacks standing to challenge a trust so long as the ‘trust is revocable and the person holding the power to revoke the trust is competent.‘ "86 Specifically, the court noted that the principle underlying section 15800 is that settlors are the persons that should be in control of the trust and its assets before it becomes irrevocable.87 Section 15800 protects the interests of settlors by limiting a beneficiary’s right to complain about a trust only to situations where the settlor is incompetent.88 The court found that Petitioner was barred from bringing the claim years after the amendments were executed, because she could have established standing at the time by proving Settlor was not competent or was the subject of undue influence when she executed the trust amendments.89

3. Barefoot v. Jennings

Barefoot involved a typical situation in probate litigation: a settlor amended her revocable trust shortly before she died, disinheriting her daughter.90 Settlor’s daughter filed a petition to challenge the validity of these amendments based on incapacity, undue influence, and fraud.91

Respondents challenged the petition arguing that appellant lacked standing under section 17200 because she was not a beneficiary under the amendments.92 They argued that only a trustee or beneficiary of a trust can petition the court under this statute as the statute does not include any other individuals.93 The Court of Appeal agreed.94 However, this limited interpretation was not accepted by the Supreme Court.

The California Supreme Court held that such a narrow reading of section 17200 was not in accordance with the purpose of the Probate Code and would insulate wrongdoers from being held accountable.95 The court found that if a disinherited beneficiary demonstrates that absent the wrongful amendment, the disinherited beneficiary would be a beneficiary under the trust, that showing is sufficient to establish standing.96

In its analysis, the court examined the language defining a "beneficiary" in the Probate Code, given its central importance to the question of who counts as a beneficiary under section 17200. The court cited Probate Code section 24, which defines a beneficiary for trust purposes as "a person who has any present or future interest, vested or contingent."97

The court recognized that the Probate Code "was intended to broaden the jurisdiction of the probate court so as to give that court jurisdiction over practically all controversies which might arise between the trustees and those claiming to be beneficiaries under the trust."98 Reading the Probate Code consistent with this statutory scheme, the court concluded "claims that trust provisions or amendments are the product of incompetence, undue influence, or fraud… should be decided by the probate court, if the invalidity of those provisions or amendments would render the challenger a beneficiary of the trust."99

C. Other Claims Involving Trusts

Given that there are a variety of claims that involve trusts, standing for each type of claim is required and will vary depending upon the circumstances. These requirements are often explicitly defined in the Probate Code, although there are still standing issues which have yet to be addressed by the legislature or the courts.

1. Demands for Information and Accounting

Pursuant to Probate Code sections 16060-16064, a beneficiary of a trust has standing to demand information and an accounting.100 This includes a contingent beneficiary whose rights may be affected.101 However, during the period of revocability, the trustee owes only a duty to provide information to the person holding the power to revoke, not the beneficiary.102

When a trust is irrevocable, a trustee may be required to account to the beneficiaries for the trustee’s actions during the period when the trust was revocable.103 While typically a contingent beneficiary lacks standing to petition the probate court to compel a trustee to account or provide information relating to the trust while it is revocable, there is an exception to this rule: a beneficiary may have standing while a trust is revocable where the claim is that the settlor is incapacitated or subject to undue influence.104 When a trust is revocable and the person holding the power to revoke does not have capacity, the trustee owes duties to the persons identified in the trust instrument or, if the trust is silent, to the trust’s beneficiaries, broadly defined. Incapacity can be established by the method specified in the trust or judicial determination.105

Note, however, that trust law does not provide a separate procedure for determining capacity, and no reported decisions have addressed the question of what procedure is due the living and allegedly incapacitated settlor.106 Each case to touch on the issue of capacity has been brought after the death of that person107 or by a petitioner

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who did not allege the settlor’s incapacity.108 While the settlor is alive, a prerequisite to establishing standing will usually require establishing incapacity in a separate conservatorship proceeding.

2. Actions to Determine Ownership of Property

Probate Code section 850 outlines standing in actions for disputed property claims that involve third parties. The statute permits petitions by conservators or guardians;109 personal representatives;110 trustees;111 or "any interested person."112 A trustee or interested person must file a section 850 petition when the proceeding concerns the transfer of property.113 While the executor is generally the proper party to initiate these actions on behalf of an estate against a trustee, beneficiaries and heirs may have standing in "special circumstances"—namely if the personal representative is also the trustee.114

3. Actions to Reform Trust

Pursuant to Probate Code section 17200, both beneficiaries and trustees have standing to reform a trust to correct a drafting error. The settlor of an irrevocable trust also has standing to reform a trust to correct a drafting error.115 A party who was not named as a beneficiary as a result of mistake has standing if the reformation affects their interest in the trust.116

In Getty v. Getty,117 the court found that an intended trust beneficiary had standing to seek reformation of the trust under Code of Civil Procedure section 3399.118 The court reasoned that section 3399 is a codification of an equitable action for reformation of a written instrument and the purpose of the doctrine is to correct a written instrument to effectuate the common intention of parties.119 However, this is specifically for agreement between parties. Note that a "party aggrieved" may include not only those who are the original parties to the transaction but also any third party who has suffered prejudice or pecuniary loss.120

4. Actions Against Third Parties

In general, the trustee, as the holder of legal title to trust assets, is the real party in interest for prosecuting suits against third parties. Beneficiaries generally do not have standing to sue third parties who commit misconduct with respect to trust assets.121 However, a beneficiary has standing to sue a third party when the trustee cannot or will not enforce a cause of action against the third party.122 The beneficiary must plead and prove that the trustee’s failure to bring suit was negligent, wrongful, or otherwise improper.123

When the trustee has committed a breach of trust, the beneficiaries may prosecute an action against third parties who, for their own financial advantage, induce the trustee to commit a breach of trust; actively participate with, aid or abet the trustee in that breach; or receive and retain trust property from the trustee knowing of the breach of trust.124

IV. STANDING IN ELDER ABUSE ACTIONS

A. Statutory Standing

The Elder Abuse Act was created to "protect a particularly vulnerable portion of the population . . . ."125 Found in the Welfare and Institutions Code, this statutory scheme was meant to prevent the mistreatment of elders. In terms of standing, if the elder is living, the elder is the proper party to assert standing, unless the elder lacks capacity.126 If the elder lacks capacity, the elder’s representative (i.e., agent, conservator, guardian ad litem) may assert standing on the elder’s behalf.127

Welfare and Institution Code section 15657.3, subdivision (d), describes who may initiate an action after the death of the elder. The death of the elder does not divest the court of jurisdiction over any claim for relief for elder abuse.128 When the elder dies, the right to commence an action, or maintain a pending action, passes to the elder’s personal representative.129 If there is no personal representative, the right to commence an action, or maintain a pending action passes to: (1) an intestate heir affected by the action; (2) the decedent’s successor in interest as defined by Code of Civil Procedure section 377.11; or (3) an interested person, other than a creditor or a person who has a claim against the estate but is not an heir or beneficiary.130

It should also be noted that the legislature intended a broad definition of standing in the area of elder abuse. The legislature specifically noted that the Elder Abuse Act was intended to "enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults."131 Standing then is construed broadly to enable the greatest protection of this vulnerable population.

1. Conflicts of Standing in Elder Abuse Actions

In Estate of Lowrie,132 a granddaughter, who was a beneficiary of a trust established by her grandmother, sought damages for elder abuse by her uncle, who was the trust’s trustee.133 The court found that the granddaughter had standing despite the fact that the uncle was trustee and that there were other surviving children.134 The court held that the granddaughter’s contingent interest as successor trustee and successor beneficiary to the remainder of the estate provided her with standing.135

The court also noted that it could not be expected that a trustee would bring an elder abuse action against himself: "If abusers gain control of an estate, they may not use a

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restrictive interpretation of standing as an escape hatch."136 Ultimately, for purposes of the Elder Abuse Act, standing "must be analyzed in a manner that induces interested persons to report elder abuse and to file lawsuits against elder abuse and neglect."137

The rationale in Lowrie was further analyzed in Lickter v. Lickter.138 In Lickter, grandchildren, who had already received their pecuniary gifts, brought an action against their father who was residuary beneficiary and personal representative as trustee of the trust, alleging elder abuse.139 The court held that the grandchildren did not have standing.140

The grandchildren could not bring an elder abuse claim as "interested persons" when their interests in the elder’s trust would not be affected by the claim of elder abuse. Specifically, "just because plaintiffs were beneficiaries of [the trust] did not make them ‘interested persons’ for purposes of pursuing this elder abuse action under subdivision (d) of Welfare and Institutions Code section 15657.3."141 The grandchildren had already received their pecuniary gifts. So, the residue of the decedent’s estate would pass to another beneficiary, leaving their interests unaffected. The grandchildren also lacked standing as the elder’s "successors in interest" absent clear and convincing evidence that all remainder beneficiaries should be deemed to have predeceased the decedent.142

While the elder is alive but lacks capacity, an action for elder abuse may be pursued by a representative on the elder’s behalf. However, the same standing rules apply. In Tepper v. Wilkins,143 a daughter sued for financial elder abuse on behalf of an elder who was still alive. The court found that the daughter did not have standing as an interested person because she had not been personally aggrieved by her sibling’s actions regarding the elderly mother’s revocable trust and that she was not the proper person to prosecute financial abuse of an elder because she was not the mother’s conservator or guardian ad litem.144

V. OTHER RELATED STANDING ISSUES

A. Conservator ships

1. Standing to File a Petition for Conservatorship

Probate Code section 1820 provides an extensive list of who can file for the appointment of a conservator. This includes (1) the proposed conservatee; (2) the spouse or domestic partner of the proposed conservatee; (3) a relative of the proposed conservatee; and (4) any interested state or local entity; and (5) any other interested person or friend of the proposed conservatee.145

A relative is broadly defined as "a person who is a spouse, parent, stepparent, brother, sister, stepbrother, stepsister,

half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse of any of these persons, even after the marriage has been terminated by death or dissolution."146

2. Nominations

Selection of the conservator is left to the sole discretion of the court, which must be guided by the best interests of the conservatee.147

Under Probate Code section 1810, "[i]f the proposed conservatee has sufficient capacity at the time to form an intelligent preference, the proposed conservatee may nominate a conservator in the petition or in a writing signed either before or after the petition is filed."148 This nomination will be upheld unless the court finds it is not in the best interests of the proposed conservatee.149

The order of preference for appointment of a conservator is provided by Probate Code section 1812: (1) the spouse or domestic partner or the person nominated by the spouse or domestic partner; (2) an adult child or person nominated by the adult child; (3) a parent or the person nominated by the parent; (4) a sibling or person nominated by the sibling; or (5) any other person or entity eligible for appointment.150

3. Opposing Petition

Pursuant to Probate Code section 1829, any of the following persons may appear at a conservatorship hearing to oppose (or support) the petition: (1) the proposed conservatee; (2) the spouse or domestic partner; (3) a relative; or (4) any interested person or friend. Note that the statutes providing for modification of the powers of a limited conservator151 and the termination of a limited conservatorship do not expressly authorize opposition to the petition by the conservatee or an "interested person." However, even if not specified, one can argue that any person required notice of the hearing would have standing to object.152

4. Accounting

In a conservatorship or guardianship, all of the following have standing to object to the conservator’s or guardian’s account pursuant to Probate Code section 2622: (1) the ward or conservatee; (2) the spouse; (3) any relative or friend; (4) any creditor; or (5) other interested person.153

Heirs of a deceased conservatee or ward are real parties in interest and have a right to intervene and contest the final account.154 An administrator of the estate may also contest the final account.155 Objections to all issues presented in an accounting must be raised before the accounting is approved. The objector may not later raise an objection to issues in an approved accounting unless the conservator obtained the order approving the account by fraud.156

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5. Standing During a Conservatorship and After Death

Johnson v. Kotyck illustrates the difference between beneficiaries’ standing before and after the settlor’s death.157 Upon death, the beneficiary’s interest is vested providing standing to the beneficiary, but while the conservatee is alive, the interest remains prospective.

In Johnson, the settlor, although alive, was under the care and custody of a court-appointed conservator.158 The issue was whether the beneficiary of a revocable trust was entitled to receive a trust accounting if the settlor was conserved.

The court held that the beneficiary was not entitled to an accounting where she asserted standing through Probate Code section 15800, which postpones the rights of trust beneficiaries during the time that a trust is revocable and the person holding the power to revoke is competent.159 The court found that section 15800 did not provide that a trust automatically becomes irrevocable when the trustor becomes a conservatee.160 Rather, the conservator is the "other person holding the power to revoke the trust" under section 15800.161 In other words, the beneficiary is not entitled to an accounting so long as the conservator retains authority to have the trust revoked and abrogate the beneficiary’s interest.

Instead of relying on Probate Code section 15800, the court noted that the conservatorship statutes provide a direct means for a prospective beneficiary to investigate wrongdoing.162 Probate Code section 2616 authorizes the filing of a petition concerning a conservatee’s assets by an "interested person, including persons having only an expectancy or prospective interest in the estate."163 The petitioner would have standing under this statute to hold a trustee accountable. The court also found that a conservator had a duty to ensure that trust assets were not being wasted, even though those assets were not in the conservatorship estate.164

B. Powers of Attorney

Judicial proceedings concerning powers of attorney are governed by statute.165 A petition may be filed for the following purposes: (1) determining whether the power of attorney is in effect or has been terminated; (2) passing on the acts of the attorney-in fact; (3) compelling the attorney-in-fact to submit accounts or reports; (4) declaring the authority of the attorney-in-fact; (5) approving the resignation of the attorney-in-fact; or (6) compelling a third person to honor the attorney-in-fact.166

Probate Code section 4540 provides a broad list of those who have standing to file these petitions, including the attorney-in-fact, the principal, the principal’s spouse, a relative, a conservator, the public guardian, a personal representative, a successor in interest, and someone requested by the attorney-in fact to take action.167 The list also includes "any other interested person or friend of the principal."168

1. Principal as the Petitioner

There are a variety of circumstances under which a petition may be brought by the principal. The principal may use the petition to terminate the power of attorney under Probate Code section 4541, subdivision (d). If the principal has revoked the durable power of attorney and has asked for an accounting from an agent who has refused to provide it, the principal can use the procedure under Probate Code section 4541, subdivision (c), to compel an accounting.

If the principal wishes to terminate the power of attorney, but the agent has argued that the principal is not competent to revoke, the principal has standing to bring a petition under Probate Code section 4541, subdivision (a), requesting that the court decide whether the power of attorney is in effect.

2. Spouse, Child, or Relative as the Petitioner

The principal’s relatives and spouse can bring a petition under section 4540.169 Spouses and children can take action when a principal is incapacitated, and they believe the agent is acting improperly.

While standing is statutorily provided for relatives, this situation can create ethical concerns for a practitioner as it is unclear who the client is when the principal lacks capacity. The fact that the principal may not have appointed the spouse or relative as the agent may indicate a lack of confidence that the individual has the principal’s best interest at heart. Practitioners must be careful not to represent a child or spouse if their interests might be adverse to the principal.170

3. Nonrelatives as the Petitioner

The fact that Probate Code section 4540 provides standing to "any other interested person or friend of the principal"171 makes it one of the broadest statutory designations of standing provided by the legislature. It essentially opens the door for any person with even a limited relationship with the principal to make a petition under the statute. This provision provides standing to nonrelatives who contact an attorney on behalf of an incapacitated principal. This often includes neighbors and friends of the principal.

Due to the expansive nature of this provision, a person creating a power of attorney who fears intermeddling may expressly eliminate the authority of some of these

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individuals by including a special provision in the power of attorney pursuant to Probate Code section 4753. This limitation can only be done with the principal’s knowledge.172 The inclusion of this provision in a power of attorney making limitations does not affect the right to resort to any judicial remedies that may otherwise be available.173

C. Elder Abuse Restraining Orders

Pursuant to Welfare and Institutions Code section 15657.03, an elder or dependent adult who has suffered abuse may seek a protective order, which can include a restraining order enjoining specified conduct, residence exclusion ("move-out order"), stay-away order, or a firearm relinquishment order.

A protective order may be sought by an elder who has suffered abuse, which includes: physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or financial abuse.174

The statute provides standing to conservators, trustees, attorneys-in-fact, guardians ad litem, or other persons legally authorized to seek the relief.175

Showing a special relationship between the abuser and the elder is generally not required to obtain a protective order. All that is required is a showing that the treatment of the abuser results in physical harm or pain or mental suffering to the elder, even if the alleged abuser has no responsibility to care for the elder and no control of the elder’s property.176

However, an application for an elder abuse restraining order based on "neglect" or "abandonment" would require a showing of a special relationship as the definitions of these forms of abuse require behavior of a person having care or custody of the elder or dependent adult.177

D. Standing to Appeal

1. Appealable Orders

Probate Code sections 1300-1304 specify orders from which an appeal may be taken. Orders authorizing or directing actions of a fiduciary are always appealable.178 Similarly, an order surcharging, removing, or discharging a fiduciary is appealable.179

2. Unique Standing Rules in the Trusts and Estates Context

Standing to appeal is unique in actions concerning trusts, estates and wills. Generally, a person must be a party of record and must be aggrieved by the ruling to appeal.180 In estate disputes, an aggrieved party can, in certain instances, appeal even if the aggrieved party did not appear at the underlying hearing.181 The rule that any party aggrieved may appeal applies to appeals from probate court orders.182

A beneficiary of an estate is entitled to appeal from a probate court order without first taking steps to become a party of record.183 Similarly, a party interested in a will, although not appearing in a contest of the will, is a "party aggrieved," and could appeal from a decree admitting the will to probate.184

In trust and estate actions, there is an exception to the general rule that where only one party of several appeals from a judgment, the appeal includes only that portion of the judgment adverse to the appealing party’s interest and the judgment is considered final as to the nonappealing parties. There are "cases of appeals from a part of a judgment where the part appealed from is so interwoven and connected with the remainder, or so dependent thereon, that the appeal from a part of it affects the other parts, or involves a consideration of the whole, and is really an appeal from the whole, and if a reversal is ordered it should extend to the entire judgment."185 When the rights of heirs or beneficiaries are so interwoven and connected, a successful appeal by one should extend to the benefit of all.186

3. Other Limitations on Standing

Fiduciaries can appeal in a wide variety of circumstances, including when they are defending the estate, pursuing claims on behalf of the estate, or litigating matters that pertain to their own accounts. However, fiduciaries do not have standing to appeal in their representative capacity when an order determines merely which heirs or beneficiaries are entitled to share in a particular fund.187

The general principle that only an aggrieved party may appeal can exclude a personal representative from having standing to appeal.188 An executor cannot question on appeal the estate’s division among heirs and beneficiaries.189 This is because a personal representative is not a "party aggrieved by the decree of distribution."190

Similarly, some parties’ interests may be too attenuated to confer standing to appeal in other contexts. For example, a court dismissed an appeal by a limited conservatee’s mother because the order in question did not injuriously affect her rights; the order only aggrieved the limited conservatee, who did not appeal on his own behalf.191 The appellant’s status as a concerned mother was insufficient to confer standing without establishing that the mother’s own rights were affected by the order appealed from.

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VI. CONCLUSION

Before advising a client to pursue an action in trust, estate, elder abuse or related proceedings, it is important to verify that the client has standing in the specific capacity in which the client will participate as a party. This is crucial since standing is a prerequisite to maintenance of any action and lack of standing will result in a bar to participating in the proceeding. The issues of standing are complex and results will vary depending on the context. If the standing of a client is unclear, start the analysis with the foundational question: are the client’s interests affected by the outcome such that a decision will result in a benefit or detriment to their interests? If so, the client should have standing to pursue the claim notwithstanding the absence of a specific Probate Code provision providing for standing. If not, then it is necessary to examine the statutes and cases to determine if there is any other basis for standing.

* Knitter & Knitter, Vacaville, CA

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Notes:

1. Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 561.

2. Code Civ. Proc., section 367 (emphasis added).

3. Chao Fu, Inc. v. Wen Ching Chen (2012) 206 Cal.App.4th 48.

4. Prob. Code, section 1043, subd. (a).

5. Prob. Code, section 48, subd. (a).

6. Prob. Code, section 48, subd. (b); Estate of Sobol (2014) 225 Cal.App.4th 771, 782.

7. Estate of Davis (1990) 219 Cal.App.3d 663, 668.

8. See, e.g., Estate of Plaut (1945) 27 Cal.2d 424; Estate of Lind (1989) 209 Cal.App.3d 1424; Estate of Molera (1972) 23 Cal. App.3d 993.

9. Prob. Code, section 1000.

10. Estate of Davis, supra, 219 Cal.App.3d at p. 668.

11. Code Civ. Proc., section 377.11.

12. Prob. Code, section 8270.

13. In re Land’s Estate (1913) 166 Cal. 538, 543.

14. Estate of Sobol (2014) 225 Cal.App.4th 771, 782.

15. In re O’Brien’s Estate (1966) 246 Cal.App.2d 788.

16. Estate of Sobol, supra, 225 Cal.App.4th at p. 782.

17. In re O’Brien’s Estate, supra, 246 Cal.App.2d 788.

18. Ibid.

19. Estate of Plaut, supra, 27 Cal.2d 424; Estate of Munfrey (1943) 61 Cal.App.2d 565.

20. Estate of Arbuckle (1950) 98 Cal.App.2d 562.

21. Estate of Plaut, supra, 27 Cal.2d 424.

22. Id. at p. 425.

23. Ibid.

24. Ibid.

25. Id. at p. 430.

26. Estate of Arbuckle, supra, 98 Cal.App.2d 562.

27. Estate of Robinson (1963) 211 Cal.App.2d 556.

28. Estate of Lane (1970) 7 Cal.App.3d 402, 406-407.

29. Estate of Sherwood (1954) 123 Cal.App.2d 209.

30. Id. at p. 217.

31. Prob. Code, section 6400 ("Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs….").

32. Estate of Robinson, supra, 211 Cal.App.2d 556.

33. Id. at p. 557.

34. Ibid.

35. Ibid.

36. Ibid.

37. Prob. Code, section 6401, subd. (c)(1).

38. Prob. Code, section 6401, subd. (c)(2).

39. Estate of Sobol, supra, 225 Cal.App.4th at p. 782.

40. Ibid.

41. Id. at p. 784. This holding is limited though. Note that it has been held that a beneficiary could continue proceedings against a trustee despite having cashed a distribution check that was tendered as a "final distribution." (Bellows v. Bellows (2011) 196 Cal.App.4th 505.)

42. Stevens v. Torregano (1961) 192 Cal.App.2d 105, 127.

43. Prob. Code, section 8000, subd. (a).

44. See Cal. Law Revision Comm. Coms. to section 8004 (referencing section 1043, the statute authorizing an interested person to appear and make a response or objection).

45. Estate of Lyons (1955) 132 Cal.App.2d 790.

46. Prob. Code, section 48, subd. (b).

47. Estate of Lyons, supra, 132 Cal.App.2d at p. 793.

48. Ibid.

49. Prob. Code, section 17200, subd. (b)(3).

50. Prob. Code, section 17200, subd. (b).

51. Prob. Code, section 48, subd. (a)(1); see also Code Civ. Proc., section 367.

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52. Prob. Code, section 17200, subd. (b)(3).

53. Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419.

54. Portico Management Group, LLC v. Harrison (2011) 202 Cal. App.4th 464, 473.

55. Prob. Code, section 16420.

56. Prob. Code, section 16403, subd. (b).

57. Prob. Code, section 15620.

58. Prob. Code, section 17200, subd. (b)(12).

59. Triplett v. Williams (1969) 269 Cal.App.2d 135, 137; see also Saks v. Damon Raike & Co., supra, 7 Cal.App.4th at p. 427 (holding that while a beneficiary is generally not the "real party in interest" and may not sue in the name of the trust, where a trustee cannot or will not enforce a valid cause of action that the trustee ought to bring against a third person, the trust beneficiary may seek judicial compulsion against trustee and may bring action in equity joining third person and trustee).

60. Estate of Bowles (2008) 169 Cal.App.4th 684, 694.

61. Id. at p. 693.

62. Prob. Code, section 24; Rest.3d Trusts, section 82.

63. Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743.

64. Bellows v. Bellows, supra, 196 Cal.App.4th 505.

65. Estate of Bowles, supra, 169 Cal.App.4th 684.

66. Id. at p. 698.

67. Prob. Code, section 2462.

68. Triplett v. Williams, supra, 269 Cal.App.2d at p. 137 ("The personal representative of a decedent not only has the power, but it is his duty, to sue for recovery of personal property alleged to have been procured from the decedent by fraud or undue influence.").

69. Prob. Code, section 9820.

70. Prob. Code, section 15800.

71. Rest.2d Trusts, section 200.

72. Estate of Giraldin (2012) 55 Cal.4th 1058, 1066 (citing Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1319).

73. Estate of Giraldin, supra, 55 Cal.4th 1058.

74. Id. at p. 1063.

75. Id. at p. 1065.

76. Id. at p. 1076.

77. Estate of Giraldin, supra, 55 Cal.4th at p. 1066.

78. Id. at p. 1071.

79. Estate of Giraldin, supra, 55 Cal.4th at p. 1068.

80. Drake v. Pinkham (2013) 217 Cal.App.4th 400.

81. Id. at pp. 403-04.

82. Ibid.

83. Id. at p. 404.

84. Ibid.

85. Id. at pp. 405, 407.

86. Id. at p. 408.

87. Ibid.

88. Ibid.

89. Id. at p. 409.

90. Barefoot v. Jennings, supra, 8 Cal.5th 822, 824.

91. Id. at p. 826.

92. Barefoot v. Jennings, supra, 8 Cal.5th at p. 826.

93. Ibid.

94. Barefoot v. Jennings (2018) 27 Cal.App.5th 1.

95. Barefoot v. Jennings, supra, 8 Cal.5th at p. 827.

96. Id. at pp. 827-28.

97. Prob. Code, section 24, subd. (c) (emphasis added).

98. Barefoot v. Jennings, supra, 8 Cal.5th at p. 827 (citing Estate of Bissinger (1964) 60 Cal.2d 756, 765).

99. Id. at p. 828.

100. Prob. Code, sections 16060-16064.

101. Prob. Code, section 16060.

102. Prob. Code, section 15800.

103. Evangelho v. Presoto (1998) 67 Cal.App.4th 615; see also Estate of Giraldin, supra, 55 Cal.4th 1058.

104. Babbit v. Super. Ct. (2016) 246 Cal.App.4th 1135.

105. Prob. Code, sections 15800, 16000; Estate of Giraldin, supra, 55 Cal.4th 1058.

106. Although Probate Code sections 810-813 specify the findings a court must make before determining a person lacks capacity, these sections also provide no procedures for determining capacity.

107. See, e.g., Estate of Moore (2015) 240 Cal.App.4th 1101; Drake v. Pinkham, supra, 217 Cal.App.4th 400; Estate of Giraldin, supra, 55 Cal.4th 1058; Johnson v. Kotyck (1999) 76 Cal.App.4th 83; Evangelho v. Presoto, supra, 67 Cal.App.4th 615.

108. Babbit v. Super. Ct., supra, 246 Cal.App.4th 1135.

109. Prob. Code, section 850, subd. (a)(1).

110. Prob. Code, section 850, subd. (a)(2).

111. Prob. Code, section 850, subd. (a)(3).

112. Prob. Code, section 850, subd. (a)(2)-(3).

113. Prob. Code, section 17200.1; Mota v. Super. Ct. (2007) 156 Cal. App.4th 351.

114. Olson v. Toy (1996) 46 Cal.App.4th 818.

115. Bilafer v. Bilafer (2008) 161 Cal.App.4th 363.

116. Estate of Duke (2015) 61 Cal.4th 871, 896.

117. Getty v. Getty (1986) 187 Cal.App.3d 1159.

118. Id. at p. 1180.

119. Ibid.

120. Orcutt v Ferranini (1965) 237 Cal.App.2d 216, 224.

121. Saks v. Damon Raike & Co., supra, 7 Cal.App.4th 419; Powers v. Ashton (1975) 45 Cal.App.3d 783.

122. Triplett v. Williams, supra, 269 Cal.App.2d 135.

123. Pillsbury v. Karmgard, supra, 22 Cal.App.4th at p. 743.

124. Estate of Bowles, supra, 169 Cal.App.4th 684; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. App.4th 445; Saks v. Damon Raike & Co., supra, 7 Cal.App.4th 419.

125. Delaney v. Baker (1999) 20 Cal.4th 23, 33.

126. Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1204.

127. Estate of Lowrie (2004) 118 Cal.App.4th 220, 227 (holding that, despite the lack of specific language regarding conservators and guardians in the Welfare and Institutions Code, the Legislature intended standing to be construed broadly).

128. Welf. & Inst. Code, section 15657.3, subd. (c).

129. Welf. & Inst. Code, section 15657.3, subd. (d)(1).

130. Welf. & Inst. Code, section 15657.3, subd. (d)(2).

131. Welf. & Inst. Code, section 15600, subd. (j).

132. Estate of Lowrie, supra, at p. 220.

133. Id. at pp. 223-25.

134. Id. at p. 226.

135. Id. at p. 231.

136. Estate of Lowrie, supra, 118 Cal.App.4th at p. 231.

137. Id. at p. 230.

138. Lickter v. Lickter (2010) 189 Cal.App.4th 712.

139. Id. at p. 716.

140. Id. at p. 718.

141. Id. at p. 717.

142. Id. at p. 739.

143. Tepper v. Wilkins, supra, 10 Cal.App.5th 1198.

144. Id. at pp. 1205-09.

145. Prob. Code, section 1820, subd. (a).

146. Prob. Code, section 1513, subd. (g).

147. Prob. Code, section 1812.

148. Prob. Code, section 1810.

149. Ibid.

150. Prob. Code, section 1812, subd. (b).

151. See Prob. Code, section 2351.5, subd. (d).

152. See Prob. Code, section 1822 (requiring notice to spouses, registered domestic partners, and relatives).

153. Prob. Code, section 2622.

154. See In re Clanton’s Estate and Guardianship (1915) 171 Cal. 381, 383.

155. In re Averill’s Estate (1901) 6 Cal.Unrep 774.

156. Bank of America v. Super. Ct. (1986) 181 Cal.App.3d 705.

157. Johnson v. Kotyck, supra, 76 Cal.App.4th 83.

158. Johnson v. Kotyck, supra, 76 Cal.App.4th at p. 85.

159. Id. at p. 88.

160. Ibid.

161. Ibid.

162. Id. at p. 90.

163. Ibid.

164. Id. at p. 89 (noting that the conservator of the estate must (1) keep informed about the administration of a revocable trust created and funded by the conservatee for his or her own benefit and (2) protect the conservatee’s interest if the conservator suspects that the assets are being "frittered away").

165. See Prob. Code, sections 4500-4545.

166. Prob. Code, section 4541.

167. Prob. Code, section 4540.

168. Prob. Code, section 4540, subd. (k).

169. Prob. Code, section 4540, subds. (c)-(d).

170. Cal. Rules Prof. Conduct, rule 1.9.

171. Prob. Code, section 4540, subd. (k).

172. Cal. Law Revision Comm. Coms. to section 4753.

173. Ibid.

174. Welf. & Inst. Code, section 15610.07, subd. (a).

175. Welf. & Inst. Code, section 15657.03, subd. (a)(2).

176. Darrin v. Miller (2019) 32 Cal.App.5th 450 (holding that standing to seek elder abuse restraining order based on "other treatment with resulting physical harm or pain or mental suffering" does not require a special relationship between parties, such as caretaking or custodial relationship).

177. Darrin v. Miller, supra, 32 Cal.App.5th at p. 455; see also Welf. & Inst. Code, sections 15610.05, 15610.57 (defining abandonment and neglect).

178. Prob. Code, section 1300, subd. (c).

179. Prob. Code, section 1300, subd. (g).

180. Code Civ. Proc., section 902.

181. Estate of Zabriskie (1979) 96 Cal.App.3d 571, 575 ("The failure of a beneficiary who is aggrieved by the order to participate in the probate proceeding below does not deprive the beneficiary of the right to appeal from the order.").

182. Estate of Bartsch (2011) 193 Cal.App.4th 885.

183. Estate of Partridge (1968) 261 Cal.App.2d 58.

184. Estate of Allen (1917) 176 Cal. 632.

185. Whalen v. Smith (1912) 163 Cal. 360, 362.

186. Estate of McDill (1975) 14 Cal.3d 831, 840.

187. Estate of Ferrall (1948) 33 Cal.2d 202, 204.

188. Estate of Baird (1987) 196 Cal.App.3d 957.

189. Estate of Ayers (1917) 175 Cal. 187.

190. Estate of Murphy (1936) 7 Cal.2d 712, 717-18.

191. Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62.