California Lawyers Association, Trusts and Estates

Herbert A. Stroh Argues CLA’s First Case as Amicus Curiae

On November 6, 2019, Herbert A. Stroh, representing the Trusts and Estates Section Executive Committee (TEXCOM) of the California Lawyers Association (CLA), appeared before the California Supreme Court to argue CLA’s first case as amicus curiae in Barefoot v. Jennings. The case turns on an issue of standing which will have a significant impact on trust litigation in California. In its amicus brief, TEXCOM aimed to assist the Supreme Court in understanding the nature of trust contests, the applicable law, and the practical effects of conferring or denying standing to people who wish to challenge modifications to a trust that have the effect of disinheriting them.

Herbert Stroh presenting CLA’s first argument as amicus curiae before the California Supreme Court.
Herbert Stroh presenting CLA’s first argument as amicus curiae before the California Supreme Court.

In August 2018, the Court of Appeal in Barefoot v. Jennings (2018) 27 Cal.App.5th 1 held that a person who was purportedly disinherited has no standing to contest a trust amendment under California Probate Code section 17200. This ruling put pending and future trust contests in jeopardy, as contestants have typically used section 17200 as the procedural method of challenging trusts and trust amendments. 

Golnaz Yazdchi of the Trusts and Estates Section summarized the case here. In short, Joan Lee Maynord amended her trust to disinherit her daughter Joan Marie Barefoot. Barefoot later challenged the amendments on the basis of mental incapacity, undue influence, and fraud after Maynord passed away. Barefoot filed her petition under Probate Code section 17200. The trial court found that Barefoot was neither a beneficiary nor a trustee of the trust under the latest iteration of the trust and dismissed Barefoot’s petition. The Court of Appeal affirmed. 

In its brief, TEXCOM argued that a would-be beneficiary who has made a prima facie case of standing in a petition should be afforded an evidentiary hearing if another party moves to dismiss the petition for lack of standing under Probate Code section 17202. Thus, a court cannot and should not dismiss a petition brought under section 17200 without a determination as to whether the petitioner is able to establish that the petitioner is in fact a trust beneficiary or trustee with standing to pursue the petition. Read the full brief here.

TEXCOM’s argument before the California Supreme Court was the culmination of a collaborative team effort. Howard Kipnis was the primary architect of TEXCOM’s brief and drafted the brief along with Herb Stroh, Ciarán O’Sullivan, and Bryan Phipps, with input from other members of TEXCOM. Leah Spero of CLA’s Amicus Committee and the CLA Litigation Section’s Committee on Appellate Courts devoted her time to editing the brief in consultation with the drafters and assisting in preparation for the oral argument, including a moot court session where she was joined by Greg Wolff of the Committee on Appellate Courts. Saul Bercovitch, CLA’s Director of Governmental Affairs, provided assistance and support throughout the process.  

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