Cite as B301382
Ciled January 26, 2021
Second District, Div. Six
By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
Headnote: Probate Litigation – Court-Ordered Mediation – Consequences of Failure to Participate
Summary: Beneficiaries who receive notice of court-ordered mediation and fail to participate are bound by the result.
David Breslin was the successor trustee of decedent Don Kirchner’s trust dated July 20, 2017, as restated on November 1, 2017. Though Breslin located the restated trust, he could not find the original trust. The restated trust made certain specific gifts and directed the residue of the trust estate to be distributed to persons and charities listed on exhibit A. Breslin could not locate exhibit A but found a document titled “Estate Charities (6/30/2017)” in Kirchner’s estate planning binder, and based on this document Breslin filed a petition to be confirmed as successor trustee and to determine the beneficiaries of the trust. Breslin served notice on each of the listed charities. Only three of the twenty-four charities responded. The court confirmed Breslin as the successor trustee and ordered mediation amongst interested parties, including Kirchner’s intestate heirs and all listed charities. Notice was given to all interested parties with a warning that any party may be bound by the terms of an agreement reached at mediation, and may lose rights as a trust beneficiary if the party does not participate in mediation. Breslin, Kirchner’s intestate heirs, and five of the listed charities participated in mediation and reached an agreement that was approved by the court. The court approved the settlement over the objections of certain non-participating charities (the “Pacific parties”) because they had failed to file a response to the underlying petition or participate in mediation, notwithstanding receiving notice of both.
Held: Affirmed. The probate court has statutory authority to order parties into mediation, and to make any orders and take any other action necessary or proper to dispose of the matters presented by the petition. By failing to participate in mediation the Pacific parties waived their right to an evidentiary hearing and forfeited their interest in the proceedings. The trustee did not breach his fiduciary duties by entering into the agreement, even though he benefitted from it, because he provided notice of the mediation and an opportunity to participate to all interested persons. The Pacific parties may not refuse to participate and later complain about the result.