2012 Case Alerts

Filed December 26, 2012, publication ordered January 22, 2013, Second District, Div. Six
Cite as B231361

In a disqualified transferee case, Probate Code section 21351(a) – which states that a donative transfer is not presumptively invalid if the transferor is related by blood or marriage to the transferee — merely requires that the transferor and transferee be related when the transferor executed the instruments in question.  This section does not require that they be related at the transferor’s death, and hence a subsequent divorce did not result in stepchildren being disqualified under this statutory scheme. 

Filed December 20, 2012
Cite as S197694

When the settlor of a revocable trust appoints a third party to act as trustee and then passes away, the beneficiaries have standing to sue that trustee for breaches of trust that occurred during the period when the trust was revocable.  While the trustee may have owed no duty to the beneficiaries at that time, the beneficiaries can sue for the breach of a duty that was owed to the settlor. 

Filed December 13, 2012, First District, Div. Two
Cite as A133952

A domestic partnership agreement is not automatically invalidated by a subsequent marriage license when the domestic partnership agreement is enforceable under Family Code sections 1600-1617 and is made after the enactment of statutes providing that domestic partners have essentially the same property rights as spouses. Accordingly, the surviving spouse of a same-sex marriage was barred by his waiver in the domestic partnership agreement and thus could not claim any interest as a pretermitted spouse in the deceased spouse’s estate.

Filed December 13, 2012, Sixth District
Cite as H037330

When the trust instrument prohibits compensation to a successor trustee, the successor trustee is not entitled to compensation. Probate Code sections 15642 and 17206 do not provide authority for disregarding the language of the trust instrument.

Filed June 27, 2012, First District, Div. Two
Cite as A132295

Attorney for the personal representative was entitled to ordinary compensation under Probate Code section 10810 despite having failed to enter into a written fee agreement with the client. Business and Professions Code section 6148, which typically requires that the attorney have a written fee agreement, was inapplicable because the payment for the attorney was to come from the estate and from not the client herself.

Filed May 21, 2012, Fifth District
Cite as F062443

Arbitration clause in contract with assisted living facility was unenforceable to the extent it would prevent an elder-abuse plaintiff from recovering attorneys’ fees and costs under Welfare and Institutions Code Section 15657.  

Filed May 10, 2012, Third District
Cite as 2012 S.O.S. 2251

Under the doctrine of unclean hands, an administrator was barred from bringing an action to quiet title to real property where he had previously tried to obtain that property by using an improper mechanic’s lien.  The court declined to accept the administrator’s argument that his personal misconduct should not bar him in his fiduciary capacity, noting that the administrator had failed to show the existence of innocent heirs who would be harmed by the application of the unclean hands doctrine. 

Filed April 24, 2012, Fourth District, Div. Two
Cite as E051772

When plaintiff sued her father’s former conservator for elder abuse, the plaintiff was barred to the extent that the former conservator’s accountings had been approved by the probate court.  The plaintiff had received actual notice and had failed to object.  The court ruled that the elder-abuse statutes did not supersede Probate Code section 2103 and the law of res judicata and that the plaintiff had failed to establish extrinsic fraud, which, if proved, could have allowed her to avoid the effect of the prior orders.

Filed April 10, 2012, Fifth District
Cite as F062232

Trust amendments were properly invalidated when they did not comply with the amendment provision in the trust. The court held that given the effect of Probate Code section 15402, when the trust specifies a method for amendment, the settlor cannot amend the trust by using the method of revocation provided in Probate Code section 15401(a)(2).

Filed March 23, 2012, Second District, Div. One
Cite as B228704

This case held that the probate court had discretion under Probate Code section 3 to determine that the old law governing the enforceability of no-contest clauses (Probate Code sections 21300 through 21322) applied to the possible contest of a trust and amendment thereto, even though the trust became irrevocable after January 1, 2001 and the amendment in question was executed after January 1, 2001. This case held that the probate court did not abuse its discretion by applying the old law and that the beneficiaries’ proposed challenges to the settlor’s capacity to amend, her failure to make distributions, and her failure to create subtrusts would have violated the no-contest clause.

Filed March 20, 2012, Fourth District, Div. One
Cite as D058547

Personal service on a party’s attorney of record constituted personal service on that party when the attorney was served with a petition for revocation of a will under Probate Code section 8270.  The court reasoned that because pre-probate contests had already occurred and involved that same party, the petition for revocation was part of the same case and hence could be served on the attorney of record.  The court also held that the bar against successive will contests did not apply to a post-probate contest when that party’s earlier contest was never adjudicated.

Filed March 14, 2012, Fourth District, Div. Three
Cite as 2012 S.O.S. 1246

Before the court can authorize an LPS conservator to consent to nonroutine, nonemergency medical treatment under Welf. & Inst. Code section 5358.2, the court must find that conservatee lacks capacity to give informed consent and that the treatment is medically necessary, which must be shown by admissible evidence. Hence, when the conservatee objected to a physician’s declaration on the grounds of hearsay, that objection should have been sustained.

Filed March 12, 2012, Second District, Div. Four
Cite as 2012 S.O.S. 1190

In an elder abuse action, a defendant can recover costs, including expert witness fees, if the plaintiff fails to recover in excess of an offer that the defendant made under Code of Civil Procedure section 998, even though a prevailing defendant could not recover attorneys’ fees under the elder-abuse statutes.  The trial court had discretion to award costs under section 998 for services of an expert who did not testify, when that expert aided in the preparation of the case and was qualified.  Furthermore, the costs recoverable under section 998 could be incurred before the time of the settlement offer. 

Filed March 8, 2012, First District, Div. Five
Cite as 2012 S.O.S. 1178

To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2.

Filed January 26, 2012, Second District, Div. Six
Cite as 2012 S.O.S. 392

The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.