California Trust, Estate & Probate Litigation

It takes knowledge and experience in two district areas, trust and wills and litigation/trial, to make a California trust and will litigation lawyer complete.

There are times when people try to implement an estate plan, but things go awry.  And that can happen when an attorney makes a mistake in drafting a California Trust or Will resulting in legal malpractice.

Bringing and prosecuting a legal malpractice case against an attorney who improperly drafted a California Living Trust or Will is complex, to say the least. It is particularly difficult because knowledge of three distinct areas of law is required for a hopefully successful outcome. First, you need to understand the law as it applies to estate planning (i.e. Living Trusts, Wills, etc.); you also need to understand the rules of civil litigation; and finally, you need to understand the rules and laws as they apply to insurance and bad faith insurance litigation.

Estate Planning: It takes years of experience to become a good estate planning attorney. Over the years, Trusts and Wills have become more complex due to multiple asset classes owned by individuals, married couples with children from previous marriages, and ever changing Trust, Will and Tax laws. Competition between attorneys that provide estate planning services is intense. What used to be only available from large and well-known law firms is now readily available across the spectrum of service providers--now large, medium, small, and solo law firms offer estate planning services. Even nonlawyers provide “assistance” in drafting estate plans. The costs for these estate plans range into the thousands of dollars to as low as $50 through several web-based providers. Unfortunately, with the intense competition between these providers, mistakes are made when attempting to convey the intent of the Trustors (the persons creating the Trust or Will) in the Living Trust or Will. This leads to beneficiaries being harmed if they do not receive the inheritance the Settlors intended. In all events, to successfully bring a successful malpractice claim in this area, one must have a good understanding of California estate plans, including Trusts and Wills.

Civil Litigation: Litigation is the process of filing a lawsuit, preparing for trial, and going to trial. The entire litigation process in California generally takes two to five years to complete. The majority of time in litigation is spent on discovery, which includes depositions, interrogatories, requests of admission, and demands to produce documents. Once discovery is completed the trial court will set a trial date. At trial a jury or a judge hears the case. The lawyers make opening statements, present evidence during direct and cross examination, and make a closing argument making their case why their client should prevail. The litigation process comes to a close with the jury or judge making a decision in favor of the plaintiff or defendant. One must not only understand the law as it relates to estate planning, but also civil litigation, to successfully prosecute a legal malpractice claim pertaining to California Trusts and Wills.

Insurance and Insurance Bad Faith Litigation: Most drafting attorneys have professional malpractice insurance, which covers the attorney up to a set amount for any lawsuit filed against them for legal malpractice. For example, if an attorney has an insurance policy of $1,000,000, then the insurance company who issued that insurance policy to the attorney will pay up to $1,000,000 for a successful litigation claim made against the attorney for legal malpractice. This is where an attorney bringing the legal malpractice lawsuit can do a lot for their beneficiary clients.

The goal is to force the insurance company to settle the lawsuit early on for the policy limits. If the goal is reached, the beneficiary obtains monetary damages for the loss they sustained by the drafting attorney’s malpractice without having to undergo the entire litigation process, which is time-consuming and extremely stressful. To implement the goal the attorney for the beneficiary simply needs to make a “reasonable” settlement offer (usually just inside policy limits) to the drafting attorney and the drafting attorney’s insurance company. If the insurance company refuses to pay the policy limit, it’s very likely the insurance company will be responsible for any judgment amount over the policy limit. This generally causes (and motivates) the insurance company to settle for policy limits.  Or if the company still refuses to settle, then it sets the stage for a bad-faith action against the insurance company down the road.  Either way, it’s a benefit to the beneficiary-plaintiff. Insurance and Insurance Bad Faith Litigation are perhaps the most misunderstood aspects of successfully bringing a legal malpractice lawsuit. You must know this area of the law.

Each of these three areas can be complex in their own right.  And in attorney malpractice cases in the California Trust and Will arena, you’ll need to combine knowledge of all three areas to be successful.

Feel free to call me if you have any questions about initiating and prosecuting a legal malpractice lawsuit against a drafting attorney. Also, if you would like the letter our firm sends to insurance companies for these types of cases, let me know.

At the end of every case—whether it’s settled or by way of judgment after a trial—I ask the opposing attorney to sit down with me to do a full review of the case. All issues in the case are open for discussion, except for attorney-client communications or any other privileged matters.

The purpose of the meeting is to become a better attorney by learning from the strategic missteps I made during the course of the litigation. When I say “missteps”, I don’t mean legal malpractice, I mean what strategic decisions I made that had little or no value, versus the strategic decisions I made that have better or greater value in the eyes of the opposing attorneys. Of course I encourage the opposing attorney to ask me the same questions about his/her strategic decisions—which ones I felt were good or not so good.

Less than a third of opposing attorneys agree to do this exercise with me. I’m not sure why it’s not 100 percent after some of the meetings I’ve done in the past. I’ve learned so much about what is effective in prosecuting my case and what isn’t. Additionally, I hear opposing counsel tell me his/her thoughts of the case as the litigation was unfolding. What stressors they had. What stressor they didn’t have. His/her view on settlement versus going to trial. And on and on…

I agree to keep the postmortem meeting with the opposing attorney confidential. And I trust they will return the same courtesy.

I challenge all California attorneys to offer to do a postmortem analysis of their cases with opposing counsel. We would all be better for it—learning and becoming better attorneys based on the analysis of our work from the impressions formed by the opposing attorney during the lawsuit and vice versa. And, doing this type of meeting would help foster better relationships between plaintiff and defense attorneys who may meet again in future cases.

You may think that a California Will or Trust controls the distribution of all your assets after your death.  You may be surprised to learn just how meaningless a Will or Trust can be depending on how your assets are titled.

When a person is alive, his assets are viewed as belonging to him.  When that same person dies, however, his assets suddenly become separated into distinct legal entities that may have nothing to do with one another.  And each legal entity has its own set of rules and procedures governing its distribution.

For example, let’s say you have one living parent (we’ll call her Mom), she has three children and she owns the following assets:

• House—A home titled in the name of her revocable Trust, which lists all three children as equal beneficiaries,
• Bank Accounts—A checking and savings account at Citibank titled jointly in her name and her oldest son’s name (we’ll call him Adam),
• Brokerage Account—A brokerage account titled jointly with her youngest son’s name (we’ll call him Bob),
• Retirement Accounts—An IRA and 401(k) with all three of her children designated as equal beneficiaries, and
• Life Insurance—that names her only daughter as the sole beneficiary (we’ll call her Cindy).

While Mom is alive she can do whatever she likes with her assets.  She can open and close accounts, she can move money into or out of her revocable Trust, she can even name different beneficiaries for her life insurance policies.  It’s all just one big pot.

But when Mom dies, things change.  All of the various assets become essentially locked into whatever state they were in prior to Mom’s death.  And each entity has its own, independent distribution scheme.

That means, for example, that the assets will pass in different ways:

• House—passes to the three kids equally under the terms of Mom’s revocable Trust,
• Bank Accounts—pass to Adam ONLY, because he is the surviving joint tenant (neither the revocable trust nor any Will control this asset after Mom’s death),
• Brokerage Accounts—passes to Bob ONLY as the surviving joint tenant,
• Retirement Accounts—pass under the beneficiary designations to the three children equally, and
• Life Insurance—passes to Cindy ONLY as the sole named beneficiary. 

Even if Mom had a Will, the Will would not control any of these assets because none of the assets are passing under Mom’s estate.  They all bypass the estate because the assets are held in so many different probate-avoidance vehicles.  In fact, even the revocable trust controls very little of this estate—the House only.  Since the other assets were not titled in the name of the Trust, none of them pass in accordance with the Trust terms.

Mom may have thought that ALL of her assets would be divided equally among her children because that’s what her revocable Trust stated.  But Mom couldn’t be more wrong.  When setting up accounts in a certain form—such as joint tenancy or assets with designated beneficiaries (like life insurance and 401(k) accounts)—those forms control the assets after death.  In other words, the title to an asset has significant legal meaning after death.  Yet so many people create things like joint tenancy accounts without fully appreciating the consequences of their actions.

Further, if you are going to contest how an asset passes, then you better know which legal entity you need to go after.  If you sue the Trust based on an asset that does not belong to the Trust, then you’re going to waste a lot of time and money going down a deadend road.  

After making the decision to take all of my cases to trial in 2011, here are the important lessons I learned as a plaintiff’s and estate trial attorney:

1.  Taking each of your cases to trial generally works in your client’s favor.

Defense attorneys (and their clients) will offer your clients pennies on the dollar for your clients’ harms and losses, until the defendant is fully convinced you will take a case to a jury of your clients’ peers. Even then, most defense attorneys (and their clients) require you to show up and begin trial (whether you get to voir dire, opening statement, or witness testimony) before offering a reasonable settlement amount. I think they do this because they know most attorneys are not willing to go to trial.

Even though I attempted to take every case to trial in 2011, only three cases actually went to trial, with one settling right before voir dire, and the other two going all the way to a verdict. All other cases I had in 2011 settled generally between 30 days out to the day before trial was to begin.

This is an important lesson I learned. It is very likely the only way you will obtain a fair settlement for your client is to be prepared to take your case to trial—and then do so if the defendant refuses to offer a reasonable settlement.

2.  Jury instructions and an elements outline are mandatory.

When I first became an attorney I remember hearing the better attorneys say you have to know the jury instructions and create an elements outline. I had no idea what they were talking about. I do now. Before taking a case, spend time looking over the jury instructions applicable to the case you’re considering taking on. What facts do you have that satisfy each of the jury instructions? Make an elements outline of each jury instruction, including a brief description of the facts you have (or need to have) to satisfy each instruction.

This takes some work early on, but it’s worth it. It helps you focus on what facts you have, and what facts you need to obtain in the discovery process. If you learn new and needed facts during discovery, be sure to update the elements outline.

3.  Hire experts early on.

Experts are expensive—but worth every penny. There were several cases we looked at taking in 2011, but had to decline after experts told us the potential case had no chance of winning. It’s always difficult to have a conversation with a potential client letting them know they don’t have a case, but better to do this early on before putting them through the hell of several years of litigation, and then having the same conversation.

 Experts are also great because they focus you in on the facts you need to obtain in the discovery process.

4.  Don’t be afraid of motions for summary judgment.

I used to be terrified of getting motions for summary judgment. I then changed the way I viewed these motions. First, I now expect that a motion for summary judgment will be filed in every case—and that takes the surprise and fear element out of the equation. Second, because I’ve done my homework with the jury instructions, created an elements outline, and hired experts early on, I am able to file an opposition that will likely be granted. It actually makes it fun (okay, not exactly fun) to put your opposition together.

Motions for summary judgment also alert you to the arguments and facts the defense attorney will use at trial. This gives you additional time to contemplate how you plan to respond to these arguments and facts at trial. We really should be welcoming motions for summary judgment. I’m not there yet—but hope to be sometime in 2012.

5.  Bring motions to compel during the discovery process.

Defense attorneys know that many (if not most) plaintiff’s attorneys will not take the substantial time required to bring motions to compel during the discovery process. Don’t make this mistake. In 2011 I brought motions to compel at the first opportunity. It not only let the defense attorney know I wasn’t going to allow him/her to play games, it made future responses from the defense attorney so much better.

6.  Spend less time objecting at deposition and more time on motions in limine.

I used to treat depositions as an “objection” exercise. Now I don’t do that (unless absolutely necessary). If the defense attorney is questioning my client and I’m uncomfortable with the questions, I simply mark these down in my notes and indicate in my notes that I need to bring a motion in limine to keep this evidence out at trial. In most cases, these uncomfortable questions are either (1) not relevant, (2) lack foundation, (3) are inadmissible hearsay, or (4) can be kept out as “unduly” prejudicial under California Evidence Code section 352.

When you don’t object, it’s amazing how much information a defense attorney is willing to provide in a deposition that you can identify for future motions in limine. Let the defense attorney “win” the deposition—You “win” when it matters at trial when the court grants your motion in limine and keeps the bad facts out.

Worst-case scenario—the Court denies your motion in limine. At least you have the first opportunity to address these bad facts in your opening statement, which will likely remove the sting the defense attorney is hoping for. 

7.  Practice, practice, practice for voir dire and opening statement.

My poor legal assistant. I make her listen to my voir dire questions and my opening statement, over and over again. I want her to poke holes in my questions and opening statement. I also ask anyone else who will listen about these issues. The more you practice the more comfortable you become. I don’t think many defense attorneys spend time doing this—and it shows.

8.  Send defense attorneys all trial documents 30 days out from trial.

Don’t worry about showing your hand too early. Defense attorneys are extremely busy with all the cases they’re required to handle, and likely won’t have time to spend much time with your trial documents in any event. Sending defense attorneys proposed joint exhibit lists, witness lists, a statement of the case, jury instructions, and your trial brief will surprise them. Most plaintiff’s attorneys don’t do it—you should.

9.  Don’t be nice to defense attorneys.

I’m tired of hearing that we need to be civil with the defense bar. I would agree with being nice if the defense bar felt the same way—but they don’t. It’s been my experience that defense attorneys will do anything required to make your client’s case go away. It still amazes me (although it shouldn’t) that defense attorneys are willing to demonize and attack individuals who have suffered substantial harms and losses due to the defendant’s actions. The purpose is to stress the plaintiff so he/she will take a small settlement or dismiss a case in its entirety.

In one of my recent cases, the defense attorney, in deposition, wanted to know how many times my client had sex with her husband in the year prior to his death, which was caused by the intoxicated defendant. Apparently this was to somehow show they did not have a good sex life, which leads to them somehow having a bad relationship, which in turn leads to somehow my client hating her husband and glad that he’s actually dead. I know it takes huge leaps of logic to get there, but defense attorneys don’t care about the logic, they care about stressing your client and making litigation more miserable than it already is.

In another case, a large defendant corporation that manufactures surgical mesh that destroyed my client’s vagina wanted to know in deposition if my client had attempted sexual intercourse after the mesh destroyed her vagina. My client answered “yes” she attempted to one time but could not due to the substantial pain she felt. The defense attorney then wanted to know whom she attempted to have sex with. I directed my client not to answer that question based on her right to privacy. The defense attorney threatened to bring a motion to compel. I told the defense attorney to bring the motion. I couldn’t wait for the court to hear this. Of course the defense attorney already heard two treating physicians of my client testify at deposition that it was very unlikely she would ever have pain-free intercourse for the rest of her life due to the substantial scarring. But that wasn’t enough, the defense attorney wanted to know whom she tried to have sex with. 

Finally, in a recent sexual harassment case, the defense attorney wanted to know how many sexual partners my client (a female) had during her lifetime. Then he wanted to know how many sexual partners in the past 10 years, then 5 years. I did not allow my client to answer these ridiculous, invasive, and despicable questions.

Am I still supposed to be nice to defense attorneys after this type of behavior? I say no. Let’s stop being nice to defense attorneys who choose to act inappropriately. 

10.  Never give up.

Never giving up may be the best trait of a trial attorney. No matter how bad things seem, don’t give up.  Everyone will tell you that your client won’t win or doesn’t have a case. You’ll hear this multiple times from the defense attorney; you’ll hear it from the mediator; you’ll hear it from a judge at the mandatory settlement conference; you’ll hear it from the doubt that creeps into your thought process when you’re attempting to fall asleep at night. Don’t give in to these doubts.

The good news is that most defense attorneys advise their clients to offer almost nothing before trial to settle the harms and losses they’ve created. These insignificant settlement amounts make it easy to go to trial—after all, you won’t do much worse if you get defensed at trial. That makes it easier for me to handle the doubt that I will inevitably feel going to trial. Chances are, if you don’t give up, the defendant will come up with a reasonable settlement amount a few weeks out from trial. But if they don’t, take them to trial. There’s no reason not to. 

During this Christmas season of peace and good will towards men (and women), it never hurts to talk about the settlement process for California Trust and Will cases.  In the past, we have written various handouts letting our clients know what to expect at various points throughout the Court process.  And we have shared these handouts on our blog and firm website.  

We now have an addition to the series, titled "What to Expect at Your Mediation or Mandatory Settlement Conference."  A brief guide to some of the points every party should know about the mediation and mandatory settlement process.  If you have never been to mediation before, or even if you have, it can be a bit of a foreign experience.  There are things that occur during mediation, and more importatly things that do NOT occur, that are important for you to know.

Of course, our guides are just highlights and not meant to be an exhaustive explanation of each subject.  But for a quick primer on the litigation process, and the settlement process, they should help to give you a quick update on how things work.   

Nobody Likes Motions to Compel:

 Plaintiff attorneys don’t like them because they aren’t paid an hourly fee to draft them; Defense attorneys don’t like them because they know how effective these motions are at slicing through their procedural gamesmanship; and Judges don’t like them because these motions take up valuable court time with juvenile spats between grown adults—lawyers—who simply can’t agree on anything.

 Motions to Compel are Necessary:

 But Motions to Compel are necessary and required for most cases. Filing a motion to compel immediately does three things:

 Put Defense Attorneys on Notice:

 First, it puts the defense attorney on notice that you are not like some plaintiff attorneys who simply take cases in bulk and settle for pennies on the dollar. These types of attorneys generally do not bring motions to compel and live with the responses and documents the defense attorney chooses to give them. But filing a well-drafted motion to compel informs your adversary that you are not like some plaintiff attorneys.

 Dictate the Relationship Between Yourself and the Defense Attorney:

 Second, by filing the motion to compel, you dictate the relationship between yourself and the defense attorney. You are establishing that you require the defense to provide valid responses, as well as all non-privileged documents, pertaining to the case. Ironically, it’s been my experience that the relationship with defense counsel generally improves after filing several motions to compel.

 Establish That You Believe in Your Client’s Case:

 Third, by filing the motion to compel, you establish that you believe in your client’s case and are willing to put your valuable (and finite) time and resources into helping your client’s cause. Attorneys that don’t believe in their client’s case are unlikely to bring motions to compel. And defense attorneys know that a plaintiff’s attorney is unlikely to take a case to trial if he/she does not believe in it. 

 The Outcome:

 In many cases, once you’ve filed the motion to compel, the defense attorney will call you a week or so before the motion hearing date, concede, and ask if you will withdraw the motion if they provide the answers or documents you are seeking.

 But in other cases, the defense will press its luck to see what the Court will say about your motion. In the end, it really doesn’t matter if you win or lose your motion. (I’ve lost some motions I was sure to win, and won others I was sure to lose. There’s no rhyme or reason to it). What matters is that you file the motion. Once filed, you establish that you are a good lawyer who requires proper responses from the defense—and, now, you’ll likely begin to get them. Try it out in your current or next case. See for yourself how well it works. 

Responding to written discovery can be overwhelming. In most cases defense attorneys send the bulk of written discovery early on in a lawsuit. This discovery generally includes Form Interrogatories, Special Interrogatories, Requests for Admission, and Demands to Produce. Due to the size and expansive scope of this discovery one can become overwhelmed by it and tend to put it off until the last minute. Of course putting it off leads to stress, resulting in either poorly drafted last-minute responses (leading to defense motions to compel), or asking defense counsel for an extension of time to respond (which means asking for a favor.)

A better option is to establish a workflow for responding to discovery before it is ever received. Then, once your workflow is in place, it is triggered and implemented when discovery is received.

The essential components of an effective workflow for responding to discovery includes the following:

Form Interrogatories:

Obtaining completed answers to likely Form Interrogatories from your client before you receive Form Interrogatories. I usually go over the Form Interrogatories with my client before I file the lawsuit, or shortly thereafter. In any event, I do it well before a defense attorney sends discovery.

 Once I complete the likely responses I simply save them in my file to include in future formal responses I will need to provide once Form Interrogatories are actually received.

Documents:

Obtaining all documents (and things) in your client’s possession pertaining to the lawsuit before the lawsuit is filed (or shortly thereafter). This is important. Don’t think you can get all these documents once you receive the Document Demand from opposing counsel. Get every document from your client, including privileged documents, before the lawsuit is filed.

 Once I have these documents, I scan them into my case management system under a file named “Documents”. I then break these documents down into natural categories, i.e., Communications, Special Damages, Medical Records, Medical Billing, FDA, Bank Account Info, Attorney-Client Communications, Photographs, 911 Transcripts, 911 Phone Calls, etc.  

Contact information:

Obtaining the names, addresses, and phone numbers of all individuals and entities that have (or may have) documents pertaining to the lawsuit before it is filed (or shortly thereafter). This is important. If your client does not have actual possession of responsive documents after making a good-faith effort to find them, then the Discovery Act requires your client to identify any individuals or entities that may have these documents.

 I enter all names, addresses, and phone numbers of these individuals and entities into my case management system indicating that they may have documents pertaining to my client’s case. It always surprises me how long this list of names gets when you actually think about all individuals and entities that may have documents pertaining to your client’s case.

Objections:

A list of likely objections to improper discovery requests. I’ve built this list up over time and find it very useful to review as I respond to each discovery request. I keep theses objections in a handy application, which I use when responding to discovery.

Self-imposed deadline:

Simply stated, respond in 48 hours or less.

And that’s it! You now have a feasible workflow for responding to discovery. In my next blog post I will introduce an application that significantly reduces the time it takes to respond to discovery—thus ensuring you make your 48-hour deadline. 

Trust and Will litigation tears families apart.  It may be that family relationships aren't too good to begin with if litigation arises, but taking matters to Court doesn't help.  And as lawyers we have little to no ability to repair family relationships.

In one case, out of the many hundreds I have handled over my career, a client of mine chose to make a bold statement after a family dispute arose.

Her name is Sofia.  Sofia—who didn't have a lot of money—worked as a registered nurse.  While her mother was alive, Sofia helped her with her care.  While Sofia’s father was alive, Sofia sold her home and gave the proceeds of the sale to her parents because they were in need of money at that time.  Her parents, in turn, put Sofia on the deed to their home so that she could be repaid after their deaths.  Over 15 years later, both parents passed away and the house passed to Sofia.

Sofia's brothers and sisters were not too happy about the arrangement and a nasty dispute arose over the property.  But in the end Sofia won out because she had given a large sum to her parents and in return, they gave her their home when they were done with it.

The whole ugly affair did not sit well with Sofia.  So she decided to make a bold statement with the house she received from her parents, she gave the entire thing-100%-to charity.  This was a substantial gift for anyone, as it was for Sofia.  The house was worth around $350,000 and had no mortgage.  That is a large amount of money for a single working woman, something to tuck away for retirement and future care. 

Instead, Sofia gifted the entire home to the Ronald McDonald House charities, which provides housing free of charge to parents who have very sick children in the hospital.  Ronald McDonald House was planning on building a new home in Long Beach, California, and Sofia’s gift kicked-off their fund raising for the new Ronald McDonald house with an entirely unexpected gift.  The home was sold by the charity and now is being used for their charitable purpose.

Sofia's one requirement in making the gift was that it be dedicated to the memory of her parents, David and Teodora Pacheco, and their grandchildren, because they loved their many grandchildren unconditionally.  The kitchen of the new Ronald McDonald house charity will be dedicated to Sofia’s parents, primarily because her mother loved cooking and it was a central part of any family gathering.  A plaque will read “David and Teodora Pacheco Kitchen in honor of their grandchildren.”

Sofia had no obligation to make this gift.  The house was hers and she should have used it to provide for her retirement.  But for the first time in my 11 year career as a California Trust lawyer, Sofia demonstrated the power of personal sacrifice.  She did not have money to spare and could not afford such a generous gift, but she made the gift anyway.  It was important to her to turn a family dispute, one that she alone could not repair, into a lasting tribute to her parents.

Conservatorship is the Court process for taking control of an adult's finances and personal care in California when there is no other planning in place—such as a Trust or Will.  (Some states refer to it as "guardianship," but in California guardianship only applies to minors--conservatorship is for adults).

Conservatorships are supposed to “conserve” a person’s estate (as in “to keep in a safe or sound state…especially to avoid wasteful or destructive use of…” as defined by Merriam Webster).  Yet, even a routine conservatorship proceeding (one that is not contested by family members) is expensive to initiate, time-consuming to create, and burdensome to maintain. It hurts less to simply hit yourself in the head with a hammer than to go through a conservatorship proceeding.

But when a conservatorship proceeding is contested by dueling family members wanting to be conservator, now the pain really begins.  And the costs (both financially and emotionally) are downright excessive.

Conservatorship proceedings start with a petition filed by a family member reciting why the proposed “conservatee” (the person in need of help) can no longer manage his or her personal and financial decisions.  Then there are loads of other documents that go with the initial petition.

If other family members disagree with the conservatorship filing, or want a different person appointed as conservator, then they must make an objection to the original conservatorship petition and then file their own petition for conservatorship (referred to as a "competing" petition).  The Court appoints an attorney to represent the proposed conservatee, and the matter is ultimately set for trial and tried before the court to determine whose petition will win.

Sounds easy enough right?  But what this little overview fails to convey is the amount of time, money, and emotional toll that goes into a lawsuit of this nature.  Conservatorship cases are difficult to begin with because there is usually an elder adult caught in the middle; as opposed to Trust and Will contests, where the dispute revolves around a pile of assets.  The effort to conserve a person’s estate often results in the excessive waste of that estate instead. 

Of course, the Court acts as a safeguard to the estate and will refuse to reimburse the parties for their litigation fees and costs if they do not directly benefit the conservatorship estate (or even if they do benefit the estate, the reimbursement will be refused if the estate cannot afford it). 

The end result is that no good deed goes unpunished.  The parties bear the costs, the estate bears some too, and the family feels bruised, wounded and far worse from the wear of conservatorship litigation.  The alternative is to have some plans in place (such as a California Trust and related powers of attorney) so that conservatorship can be avoided.  All too often good planning is neglected and the penalty of such neglect is facing the excesses of conservatorship in California.

Death is final. And when a person who is a party to a lawsuit dies, death can be final for the opposing party too unless they take action quickly.

Dead people cannot be sued by law.  Therefore, any claims against a decedent (including those already in progress by way of an existing lawsuit) must be brought in the decedent's estate.  By estate, I am referring to a probate estate.  This is true even where a decedent died with everything he owns held in a Trust.  Why the probate estate?  Because that is where all claims against a decedent must start. 

And there are two very important deadlines you must remember when trying to preserve a claim against a decedent.  First, is the overall one-year statute of limitations under CCP 366.2.  This harsh rule states that any claims against a decedent must be brought within a year of the decedent's death or they are forever barred.  This is true even though the statute of limitations would have been longer had the person survived.  For example, the statute of limitations for breach of a written contract is 4 years, but if the breaching party dies, then the statute is cut down to a one year limit.  And this rule applies regardless of whether you knew the person died or not!

Second, if a decedent dies and his heirs/beneficiaries open a probate estate, then any creditor has only 4 months from the date an executor is officially appointed to file a claim in probate.

The lifecycle of a claim

When there is a claim against a decedent, or an ongoing lawsuit against a deceased defendant, the first step any creditor must take is to file a "Creditor's Claim" in the decedent's probate estate.

If a probate estate is not opened (and this happens often where the decedent died with a trust because no probate is necessary to transfer his assets), then the creditor must file to open a probate (creditors have the right to do this as interested parties of the decedent's estate).  Once the estate is opened, then the claim is filed with the estate.

The estate representative (i.e., the Executor of Administrator) then has to either accept the claim, and thereby agree to pay it, or reject the claim.  After 30 days the creditor can deem the claim rejected.  Once a claim is rejected, the creditor must then file a lawsuit against the estate to force the estate to pay the claim.  If a lawsuit is already pending against a dead defendant, then once the claim is rejected by his estate the estate representative must be substituted in as the party to the lawsuit.  The lawsuit can then continue. 

If a judgment is achieved as part of the lawsuit, then that judgment can be enforced against the estate.  If there are no assets in the estate, then the creditor can go after the decedent’s trust.

Sound confusing?  It is, and the procedural requirements are strictly enforced so any mistake along the way can be fatal to the creditor in attempting to collect a debt.  So beware, any death of a party to a lawsuit, or any death of a debtor, can be fatal to your claim too.

I’ve blogged before about using the concept of undue influence to overturn a California Will or Trust.  But knowing the definition of undue influence is only the first step.  To make the concept of undue influence useful, you have to know how to prove the existence of undue influence in a Court of law.  That can be trickier than it sounds.  Let’s walk though the primary options for proving undue influence in California: 

Under California law, undue influence consists of:

• John taking unfair advantage over Jane, who relies on John for her daily living needs; or
• John taking unfair advantage over Jane’s weakness of mind where Jane has Dementia, Alzheimer’s disease or some other type of mental deficit; or
• John taking unfair advantage of Jane’s distressful situation, whatever that may be. 

An Example of Undue Influence: 

It is usually easy to spot undue influence. For example, Jane has three children, namely, John, Jerry, and Jack. Jane is living with John at the end of her life, and relies on John for her daily living needs. John does not like his brothers Jerry and Jack. Six weeks before Jane dies, John drives his mother to an attorney to change her California Will or Trust, which disinherits Jerry and Jack. Now John goes from getting one-third of his mother’s Will or Trust to getting 100 percent. The question: Did John exercise undue influence over Jane? Most likely, yes. But how do you prove undue influence under California law? 

How to Prove Undue Influence under California Law: 

There are two primary ways to prove undue influence under California law—by either (i) shifting the burden of proof to John, in the example above, so he then has to prove an absence of undue influence, or (ii) by Jerry or Jack proving directly that John exercised undue influence over their mother. If at all possible, it is best to shift the burden to John to prove he did not exercise undue influence over Jane because it can be very difficult to prove the absence of something. If you don’t have facts that shift the burden of proof to John, then Jerry and Jack will have the burden of proving the existence of undue influence directly.

 How to Shift the Burden of Proof in an Undue Influence Case:

How do you shift the burden of proof to John so that he carries the burden to prove he did not exercise undue influence over Jane? Under California law there is a presumption of undue influence that arises if you can establish three facts:

• Confidential Relationship: Jerry and Jack must prove that John had a “confidential relationship” with Jane, which can consist of John being Jane’s trustee, or agent under a power of attorney, or conservator, or perhaps, simply being Jane’s son.
• Active Participation: John must have “actively participated” in the preparation or execution of the Will or Trust.
• Undue Benefit: John must receive an “undue benefit” by way of the new Will or Trust.  

You can prove each of these facts where John (i) is the Executor or Trustee of Jane’s Will or Trust, (ii) arranged to have an attorney draft the new Will or Trust for Jane to sign, and (iii) where John’s interest in the Jane’s Will or Trust increases from one-third to a higher amount. 

Once these facts are proven, there is a presumption that John exercised undue influence over Jane causing her to create the new Will or Trust; and the burden of proof shifts to John to prove the absence of undue influence, which is not easy for John to do under this fact scenario. Essentially John has to prove a negative—i.e. that undue influence did not occur. 

 How to Prove Undue Influence Directly:

If you can’t prove facts shifting the burden of proof to John, you must prove undue influence directly. Circumstantial evidence is enough to prove undue influence. Here are the most likely facts you need to prove undue influence directly:

 Disinheriting a child: Provisions that are unnatural, cutting off from any substantial bequests the natural objections of the decedent’s bounty. When Jane disinherits Jerry and Jack, that is disinheriting her children, an unnatural act, which can indicate undue influence.

 Contradicting decedent’s former estate plan: Dispositions at variance with the decedent’s intentions, expressed before the document’s execution. If Jane had a previous Will or Trust that treated her children equally, but a new Will or Trust (or Amendment) contradicts the former Will or Trust (or Amendment), this can add to the conclusion that Jane was unduly influenced.

 Opportunity to control decedent: Relations existing between the chief beneficiaries and the decedent that afforded the former an opportunity to control the testamentary act. If Jane relied on John for her daily living needs, this can add to the conclusion that Jane was unduly influenced.

 Poor mental and physical condition: A testator whose mental and physical conditions are such as to permit a subversion of her freedom of will; and if there is evidence the testator had a weakened state of mind it is easier to demonstrate the pressure from another overcame the testator’s free will.

 Sudden negative shift in attitude: Under California law, courts may infer that Jane’s sudden negative shift in attitude toward Jerry and Jack was caused by John’s poisoning Jane’s mind because the court can find no other rational explanation.

 Decedent’s advanced age: A Will or Trust creator of advanced age at the time a document is signed adds to the conclusion the testator was unduly influenced.

 History of mental deficits: A Will or Trust creator with a history of mental deficits adds to the conclusion the testator was unduly influenced. California Probate code section 811 outlines the likely areas of mental deficits.

 History of Dementia or Alzheimer’s disease: A Will or Trust creator with a history of Dementia or Alzheimer’s Disease adds to the conclusion the testator was unduly influenced.

Testator under conservatorship: A Will or Trust creator that is under a court ordered conservatorship adds to the conclusion the testator was unduly influenced. 

The more of these facts you can establish, the easier it is to prove undue influence directly.

There you have it—a big picture view of how to prove undue influence cases under California law. In future blog posts, I will treat in further detail (i) the burden shift for undue influence cases, and (ii) proving undue influence directly.

I’m a huge fan of the iPad. I keep finding new ways to use it in the practice of law. One of the best iPad apps I’ve come across is iAnnotate PDF by Aji, LLC. At $9.99 it is a bargain.

I recently finished a three week trial and ordered all 1200 plus pages of the trial transcript in order to prepare my closing brief. When I received the trial transcript, it took up three large binders.

I’m flying out of state in the next couple of days and I want to take the trial transcript with me to review while on the plane. Normally this would require me to fit all three binders into my carryon luggage so I could access them during the flight. Additionally, it would require me to encroach upon someone’s seat space to open up the binder to review, mark, and make notes on the transcript.

But that will not be a problem with my iPad and iAnnotate. I had my paralegal save the trial transcripts as PDF documents. I then uploaded all 1200 plus pages of the trial transcript to iAnnotate using iAnnotate’s Aji PDF service (which is free and works with both PCs and Macs). I now have all 1200 pages on my iPad, and I get to use all the great features in iAnnotate to mark them up and make notes. I can spend my entire flight with my iPad navigating the transcript and preparing my notes for the closing brief. Once completed, I can e-mail the marked up PDF to myself and open them in Acrobat Reader, etc.   

Not only am I happy that I have the complete trial transcript on my iPad, I’m sure the passenger who sits next to me will enjoy their extra space.

P.S. I am not affiliated in any way with Apple or iAnnotate, other than being a consumer of their products.

What to do if the other party is acting on the docs, pulling assets, selling homes, and you are still preparing your case?

Last week I discussed some of the ways in which Trust and Estate assets can be frozen pending a lawsuit.  In my previous post I discussed Liens and restraining orders/injunctions.  In this post, volume 2, I have a few more ideas:

1.     Petition for Instructions and Blocked Accounts.  California Probate Code Section 17200(b)(6)provides a procedure where a beneficiary can ask the Court to instruct a Trustee to do certain things, such as follow the Trust terms.  And the Court has a good deal of leeway in fashioning remedies to help protect Trust and Estate assets.  One example is the use of Blocked Accounts. 

A Blocked Account is just a bank account set up by the Trustee or Executor into which the estate funds are deposited.  Once on deposit, the money cannot be withdrawn, transferred, spent, etc. without a Court order authorizing the action.  In other words, the account is blocked in the sense that it cannot be accessed without the Court’s approval.  As you might imagine, a blocked account is very helpful in terms of freezing liquid (i.e., cash) assets pending a lawsuit.  Of course, you need a good reason for the Court to order a blocked account.  But where facts are present that Trust assets are being wasted or spent inappropriately, it is a helpful remedy to ensure the funds are not dissipated pending the lawsuit.

2.     Ex Parte Petition to Suspend Trustee.  Many beneficiaries wish to remove the Trustee when the trust administration goes badly.  And the probate Court does allow removal for various reasons (see our earlier blog post on Trustee removal).  But a removal petition takes time to prosecute because the Court ultimately needs to set if for trial and that can take a while (i.e., one to four years!!).  In the meantime, the Trustee is still in office and potentially able to do more damage.

The solution is to seek a suspension of the Trustee.  The Court can temporarily suspend a Trustee and appoint a neutral third party to act as Trustee until such time as the Trustee removal petition is heard at trial (See Probate Code Section 15642(e)).  The benefit of suspension is that it can occur without a full-blown trial because it is just a temporary measure meant to maintain the Trust in its current position without any further harm.  The detriment of suspension is that it’s not always easy to obtain from the Court. 

The easiest way to obtain a Trustee suspension is to show that the Trustee is misappropriating funds (see my earlier blog post of this topic).  With the right set of facts, a Trustee can be temporarily suspended, which makes the beneficiaries breath a little easier during a lawsuit.

3.     Trustee’s Bond.  Requesting that a Trustee be bonded is not so much an asset freeze technique, but rather a safeguard against wrongdoing.  A bond (called a surety bond) is merely a way in which the wrongful acts of the Trustee can be paid by the bonding company.  However, unlike insurance, once a bond pays out, the bonding company has the right to sue the Trustee personally to get its money back.

The benefit of the bond is that it provides a deep pocket from which damages can be paid for any breaches of trust committed by the Trustee.  Most Trusts specifically waive bond for a Trustee, but a Court can still requiring a bond if necessary to protect beneficiaries.

The downside of a bond is that you must prove that the Trustee did breach his or her fiduciary duties before the bond is liable to pay anything.  So you won’t know if money will be paid on the bond until you go through trial and, hopefully, prevail.  And since the bonding company is on the hook if you do prevail at trial, they have the right to have their own attorney at the trial to help defend the Trustee.

Two things will get a Trustee removed quickly: death and stealing.  By stealing I mean really stealing—like tens or even hundreds of thousands of dollars missing or misappropriated. 

But what about Trustees who violate their fiduciary duties but haven’t (1) died, or (2) stolen large sums of money?  Those Trustees can be harder to remove from office.  You as a beneficiary may believe, for good reason, that a Trustee is acting improperly and should be removed.  In fact, a large numbers of private Trustees fail to meet their fiduciary duties primarily because they don’t know what those duties are (see our earlier post on this topic).  But assembling the necessary evidence and arguments to justify removing a Trustee before the Court can be tricky and time consuming.

A client of mine told me that Trustee removal seems to be a case of death by a thousand lashes.  In other words, the removal must be supported by building a case using as many fiduciary violations as you can find.  After a good number of violations are assembled, then you have a shot at Trustee removal.  This does not mean that it is hard to hold a Trustee liable for his or her breaches.  Finding that a Trustee is personally liable for a given breach can be easier than having the Trustee removed.

In my experience, it can be hard to remove a Trustee because the Court puts a good deal of emphasis on the Settlor’s choice of that Trustee in the first place.  Also, many Courts are reluctant to suspend or remove a Trustee temporarily, absent death or substantial stealing, because they don’t want to “shoot from the hip.”  This means that the Trustee removal issue must go to trial where proper evidence can be presented by both parties to determine if removal is warranted.

Under the California Probate Code, Court’s have wide discretion to remove Trustees.  Removal can be based on the following grounds:

1. Any provision in the Trust document for removal (some Trust’s will specify a removal procedure),
2. Where a Trustee has committed a breach of Trust (again must have a number of examples of this to be effective, absent death or substantial stealing),
3. Where the Trustee is insolvent or unfit to administer the Trust (a loose standard to show a Trustee is “unfit”),
4. Where hostility or lack of cooperation among Co-Trustees impairs the administration of the Trust,
5. Where the Trustee fails or declines to act,
6. Where the Trustee’s compensation is excessive under the circumstances,
7. Where the Trustee is the same person who drafted the Trust (or related to the person who drafted the Trust).

Many times beneficiaries will focus on one item, such as where a Trustee has committed a breach, and think that the one occurrence they have witnessed is sufficient for removal.  But if the Court is reluctant to force removal (which most Court’s are), then how big of a breach does it have to be to justify removal?  That depends on the facts of the case.  The more examples you have of a Trustee breaching his duty, and the more severe each example is, the more likely you are to obtain Trustee removal.  Hence, the death by a thousand lashes.  On the other hand, if you have one big breach, then that single lash may be enough to rid the Trustee from office.

Trust and Will litigation is a bit of a shell game.  You remember the shell game, where a pea is placed under one of three shells and then the shells are re-sorted as quickly as possible so as to lose track of which shell has the pea.  The observer is then asked to pick the shell with the pea—it’s a 1 in 3 shot of getting it right.

The reason Trust and Will litigation is like a shell game is because so much depends on how assets are titled at death (see our earlier blog post on this issue).  The Trusts and Wills are the shells and the assets are the peas. 

For example, a decedent may die with a Trust, but if nothing is titled in the name of the Trust, then there may be nothing to contest regarding the Trust.

And a Will only controls what is in the estate, which means only those assets titled in the decedent’s name alone (this excludes property titled in joint tenancy, by beneficiary designation, or in the name of a trust).  However, in most cases, people have “pour-over” Wills that pass all assets from their estate to their Trust.  Thus, a Trust may not have any assets to begin with, but can obtain assets from a pour-over Will.

Sound confusing?  It is.  So where do you start when you want to contest a Trust and a Will (or is it a Trust or a Will, or just a Trust, or maybe just the Will…)?

Step One.  You have to determine where the assets are located.  Often, they are scattered all over the place, with some in a Trust, some in the decedent’s own name (so those are in the probate estate), and some passing by joint tenancy with right of survivorship (which pass outside the Will and the Trust). 

Step Two.  Once you have identified where the assets are located, you need to know what documents you are working with.  Is there a Trust, what does it say, and when was it last amended?  Is there a Will, what does it say?  What about joint tenancy property?

Step Three.  You have to decide what to attack first.  Typically that would be the vehicle that has the assets.  So if the assets are in the Trust, contest the Trust.  If the assets are in the probate estate, contest the Will.  (You'll have to open probate to contest a Will, if probate is not already opened.)  If the assets are in joint tenancy, you have to file that lawsuit in the probate estate (see Probate Code Section 5302), but it will take clear and convincing evidence to dislodge the joint tenancy.  Sometimes, you will want to attack all three at the same time if there is a chance that assets may pass from one vehicle to another (such as from a pour-over Will to a Trust).  Other times, you will attack just one and save the other contests for later if the need arises. 

The mistake you want to avoid is attacking a vehicle that has no assets and never will have any assets.  So if an asset is passing by joint tenancy (which passes outside a Will and a Trust) and you want to attack that transfer (i.e. the joint tenancy transfer, such as a jointly held bank account), then you have to file a lawsuit in the probate estate and request that the joint tenancy asset be returned to the estate.  If you are successful, then (and only then) the asset would pass by Will, if the Decedent had a Will, or by intestate succession if there is no Will.  You most likely do NOT want to contest the Decedent’s Trust in this scenario because the Trust does not own the joint tenancy asset.  In fact, the Trust has nothing to do with joint tenancy assets in most cases.

The bottom line is to map out the location of the assets and the documents you are contesting.  Of course, there has to be a reasonable legal basis for the contest and you have to watch out for any no-contest clauses (see our earlier posts on no-contest clauses).  But once the facts are mapped out, you can then plan your attack on the document that holds the asset(s). 

We have created various handouts for our clients to explain certain aspects of a lawsuit.  In an earlier blog post I shared our handout describing the overall process of a lawsuit.  We also have created handouts on what to expect at a deposition and what to expect in written discovery.  We have decided to make these forms available to you as well by posting them on our website.

Again, these are not meant to provide an exhaustive listing of everything that occurs during the litigation process, but it does provide some basic information so that people who are not familiar with the legal system will have some idea of what they can expect. 

It is shocking to me how many Trustees violate their fiduciary duties.  Under California Probate Code Section 16000 et seq. there are voluminous sections on all the duties, responsibilities, and liabilities Trustees must comply with to property administrate a Trust.  There are rules on just about every action a Trustee must take, and on actions the Trustee must NOT take, from proper investing (under the Uniform Prudent Investor Act ), to allocation of items between income and principal, to every other action or inaction required of a Trustee.  Yet, so often these many duties and responsibilities are simply ignored, or worse, not known by the individual trustees. 

And when a Trustee violates his duty, and if that violation is challenged in Court, it is the Trustee’s burden to prove that he met the standards required of him under the California Probate Code.  This is why being a Trustee is a thankless job.

But why do so many Trustees get it wrong?  The biggest problem is lack of knowledge. Many individuals acting as Trustees have no idea that they have a boat-load of requirements to follow under the Probate Code, and likely under the Trust document.  They have never been educated, advised, or inquired about their duties at all.  It seems shocking just how many people willingly assume the many duties as Trustee, but have no idea what those duties are. 

A common misconception is that the person acting as Trustee is in control and can do whatever he likes, even continuing to own and invest the way the Trust creator (called a Settlor) did prior to his death.  Not so.  A Trustee cannot do whatever he likes and he cannot continue to invest or even hold assets that the Settlor acquired during life.  This is because the duties of investing for a Trustee are vastly different from those allowed by individual Settlors who created the Trust in the first place.

As a Settlor, the person is entitled to invest however they like (this assumes we are discussing a typical revocable living trust used in estate planning).  The only duties a Settlor has is to herself.  She does not hold assets for anyone other than herself and the Probate Code says she only is responsible to herself.  But once the Trustee passes and a successor Trustee takes over, the ground rules change substantially. 

For example, an individual Settlor has no duty to diversify assets.  She can hold 100% of the Trust assets in a single asset class (such as real estate), or even in a single stock (i.e. Enron) if she likes.  But when a successor Trustee takes over, a duty to diversify the Trust assets comes into effect.  That means the new Trustee must take immediate action to sell a portion of the Trust assets and diversify those investments as required by the Probate Code—there is no leeway here.  Assets MUST be diversified by Trustees!

If I had to guess how many private, individual Trustees are in breach of trust (this does not include professional fiduciaries or corporate fiduciaries), I would say from 80% to 90% of them.  Sounds extreme?  Maybe, but my experience with individual Trustees would suggest that 100% of them are in breach of trust as to at least some aspect of their duties. 

So when you are asked to act as Trustee of a California Trust, the first thing you should do is find out what duties and responsibilities you have.  You’ll be glad you did because it will be up to you alone to prove you complied with those duties.  And it’s much easier to comply with duties you know about than duties you don’t.

One of my first litigation cases was against attorney Thomas W. Dominick in San Bernardino County Probate Court. Tom is one of the best estate and trust litigators in California. To say the least, I was scared. The issue in that case revolved around whether my client had a right to his girlfriend’s real property after her death. She promised my client the property during her lifetime and he had spent money on the property, but nothing was in writing and the two were never legally married. I remember being frustrated that I could not find a legal doctrine to support my client’s claim after his girlfriend died. I was shocked that there appeared to be no real protection for long-term nonmarital partners after the death of the other partner. I ended up alleging several causes of action that were weak at best (i.e. oral promise to enforce trust in real property, quiet title, specific performance, constructive trust, and unjust enrichment—known generally as Marvin claims based on a case of the same name). Unfortunately, these claims must be brought within one year of the decedent’s date of death or they are forever time barred under the statute of limitations applied to decedents' estates. And, the girlfriend’s family waited over eight years to file a petition for probate, knowing all the while that my client continued to live in what he believed was his house (the eight year time-frame made most of my client’s claims moot).

But I had equity on my side as my client had lived with his girlfriend for almost 30 years and he had invested his own money into the home over the years. Thankfully, the case settled after Thomas and I worked out a settlement, on behalf of our respective clients, which allowed my client to occupy the home for his lifetime.

A recent Court decision would have made my job much easier in the above-referenced case.  In McMackin v. Ehrheart (decided April 8, 2011) Presiding Justice Robert M. Mallano, writing for California’s Second Appellate District, Division One, discussed (as a matter of first impression) whether a Marvin claim based on a decedent’s promise to leave her nonmarital partner a life estate in real property requires the nonmarital partner to file a lawsuit within one year of her partners death, and if so, whether the doctrine of equitable estoppel can be applied to preclude assertion of the one year statute of limitations. The court concluded that the Marvin claim is governed by a one year statute of limitations, but that, depending on the circumstances of each case, the doctrine of equitable estoppel may be applied to preclude a party from asserting the one year statute of limitations. 

The pertinent facts of McMackin established that nonmarital partners—Hugh and Patricia—lived together in Patricia’s home from 1987 to 2004. Hugh was never on title to Patricia’s home, but continued to occupy her home after her death. More than three years after Patricia’s death, her children filed a petition for probate, which would effectively kick Hugh out of the home leaving him with no interest in Patricia’s estate. In reply, Hugh filed a lawsuit alleging that Patricia had promised him a life estate in the home upon her death in consideration for 17 years of his “love, affection, care and companionship.” Hugh argued that the one year statute of limitations did not apply. Of course Patricia’s daughters argued that the limitation statute applied (as three years had passed). In response, Hugh argued that even if the one year statute of limitations applies, the doctrine of equitable estoppel precluded Patricia’s daughters from using it against him. The court of appeal agreed, stating the one year statute of limitation applies, but that equitable estoppel may preclude the daughters from raising it as a defense. The court of appeal then sent the case back to the trial court for determination of these issues.

Overall, McMackin is a great case to review if you run into nonmarital partner estate issues. Justice Mallano did a great job in articulating the legal analysis pertaining to Code of Civil Procedure section 366.3 and the doctrine of equitable estoppel. I think this case will be used as more people choose to live together rather than get married. Of course all of the Marvin claim messes can be avoided by proper estate planning (i.e. creating California trusts and wills).

I’m still amazed when defense attorneys direct their clients not to answer my questions during a deposition where no privilege exists. In other words, the defense attorney simply assumes the role of judge and decides what questions their client will and will not answer. Of course, the defense attorney instructs their client not to answer any damaging questions, even where no privilege (i.e. attorney-client, etc.) applies.

When this happens in my depositions, I request the court reporter to mark the record in anticipation of bringing a motion to compel the deponent to answer my valid questions at a future deposition. For my motion to compel I rely primarily on Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.  

In Stewart, the defense attorney repeatedly directed his client not to answer questions at deposition on the ground that they were not calculated to lead to the discovery of admissible evidence. The plaintiff’s attorney, in response, filed a motion to compel further answers with the court. At the hearing, the judge remarked to the defense attorney, as follows:

So you’re the Mr. Wolfe that sat in the deposition and instructed the witness not to answer questions because you didn’t think they were relevant. Well that’s not your role. You are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged. The proper procedure is to adjourn the deposition and move for protective order. You don’t assume the role of judge and instruct the witness not to answer a question in a deposition. That is a huge no-no. (Stewart at p. 1101.)

The Court then ordered the defense attorney to pay sanctions to the plaintiff’s attorney in the amount of $2,400.

The defense attorney didn’t leave well enough alone. He appealed the trial court’s $2,400 sanction. The court of appeal quickly dispatched the defense attorney’s appeal holding that deponents are not to be prevented by their attorneys form answering a question unless it pertains to privileged matters or the deposing attorney’s conduct has reached a stage where suspension of the deposition is warranted. (Stewart at 1015.) The court of appeal affirmed the trial court’s ruling.

The next time any attorney orders their client not to answer a question at deposition where no privilege exists, point out the holding in Stewart on the record as a meet and confer, and then you’ll have a slam dunk motion to compel if the attorney continues to direct their client to not answer.

California Form Interrogatory 15.1 (an “interrogatory” is just a question) is the most important interrogatory to serve on your opposing party in a lawsuit. And the law requires they answer it fully and completely. Yet, so many attorneys refuse to answer the question properly.

A typical use of 15.1 follows:

You file a Trust Contest or a Will Contest (or any other type of lawsuit) alleging three causes of action: (1) Undue Influence, (2) Lack of Capacity, and (3) Financial Elder Abuse. The opposing party files an answer to the Trust Contest or Will Contest denying most, or all, of your allegations, and on top of that includes 15 affirmative defenses (an affirmative defense, if proven by the opposing party, operates to defeat your claims even if the facts supporting the claim are true).

The opposing party’s denials and affirmative defenses must ultimately be tried, which can make for a long, costly and confusing trial.  But what if the denials and affirmative defenses could be trimmed down before trial?  That’s the purpose of 15.1—you can narrow the issues, and force the opposing party to show their cards—factual cards—before trial. Once you narrow the issues in a case, you are able to clearly and forcefully present the true facts of the case at trial, which generally equals a win for you.

How does 15.1 do this? 15.1 requires the opposing party to provide all facts, all persons, and all documents that support (1) their denials, and (2) their affirmative defenses. In other words, for each denial of a material allegation in your lawsuit (i.e., Trust Contest or Will Contest) the opposing party must (1) identify all facts supporting each denial, (2) identify all witnesses (including their names, addresses, and phone numbers) who can testify about facts supporting each denial, and (3) identify all documents (or things) (including the name, address and phone number of the person who has each document) supporting each denial. Likewise, the opposing party must identify all facts, witnesses, and documents that support each and every affirmative defense (all 15 of them in the case presented above—that’s a lot of work).

To date, I have never received a proper response from an opposing party to 15.1. I generally follow up the opposing party’s response with a required “meet and confer” letter articulating how they must respond to 15.1. If the opposing party refuses to supplement their improper response I generally file a motion with the court requiring that they properly respond to 15.1. Any time I have filed a motion with the Court on 15.1, the Court has granted my motion and ordered the other side to respond. I have even received monetary sanctions against the opposing parties. So beware, when 15.1 comes your way, especially from my firm, it must be answered.

If you have questions, or would like to receive a form copy of my motion to compel for 15.1, please contact me.  

My law firm strongly believes in fighting for justice and fairness—so much so that we put it right on the first page of our website. But these two concepts, “justice” and “fairness”, are confusing at times, which makes it difficult for clients when attempting to understand how to obtain justice or fairness in a lawsuit. 

Let me first explain these two terms in my view. 

Justice:  Justice is the process of presenting evidence in Court before a judge or jury and having them decide in your favor after the evidence is reviewed. When you win in court you receive a public pronouncement that you are right and the other side is wrong, and you receive a just punishment or reward against the other side in the form of damages, i.e. usually money.

Fairness:  Fairness is a financial determination—w ill you receive more from the lawsuit financially than you put into it?  If you spend $20,000 on a lawsuit, you want to receive more than $20,000 out of that suit.  Otherwise, the lawsuit was not fair—meaning financially fair.

Justice pays no attention to the financial costs of a case.  If a person wants justice they must be willing to spend as much time, emotional capital and money as necessary to achieve that result, which can often be an unfair result from a financial viewpoint. And just because a case goes to trial does not mean that justice will be served;you could lose and thereby suffer an unjust result in the process. That’s one of the risks of fighting for justice—injustice.

For example, when we prosecute killers in court for capital murder, whichcarries the death penalty, it is very expensive.  The cost of trying death penalty cases far outweighs any financial gain we (society) will get back in return.  So do we decide not to prosecute murderers because it's just too expensive?  No, because we want justice and as a society we are willing to pay the price for justice.  Plus, it is society as a whole who pays--no one person is asked to pay for a death penalty trial.  But the death penalty trial is not fair from a financial standpoint because the financial costs outweigh the financial benefits—but it is just.

In a civil lawsuit, however, whether it be personal injury, breach of contract, will or trust contest, or breach of duty case, a single person or small group of people are paying the bill. And a vast majority of people want their case to be fair--meaning they will get more out of the case financially than what they put in.  Yet, people regularly want justice. 

But justice is not easy to obtain. Rarely is it handed out willingly. It must be fought for at any cost and there is no guarantee that a just cause will prevail--losing is always a possibility. It takes time, effort and an emotional toll to pursue justice. Nelson Mandella, Martin Luther King, Jr., our Founding Fathers all fought for justice, placing their lives and freedom on the line. They paid a high price for their just causes; it was not a fair result.

Sometimes, justice and fairness are both achieved such as when a personal injury suit is won with an appropriate award for damages (although one could argue that the damages should have been paid without having to pay an attorney a fee to go to trial—so maybe it’s not so fair after all). 

The next time you find yourself in a dispute ask whether you are fighting for justice or fairness.  If you really want justice, be prepared to pay the price.  And if you really want fairness, then take the opportunity to accept a fair result when and if one is presented.   

The concept of “undue influence” can be used to invalidate a Will or Trust. What is undue influence? According to the California legislature “undue influence” is the taking of an unfair advantage of another’s weakness of mind. In a word: coercion. For example, a caretaker befriends an elderly person and takes over the elder’s financial affairs, such as writing checks, paying bills, etc. Even though the elderly person already has a Will and Trust leaving all of her property equally to her two children, the caretaker takes advantage of his position of trust and convinces the elderly person to create a Will and Trust leaving everything to the caretaker and disinheriting the children. The Will and Trust that the elderly person creates under these circumstances does not reflect the elder’s intent (because she wanted her assets to pass to her children), rather it reflects the intent of the caretaker. The children can then sue after the elderly person’s death and challenge the validity of the Will and Trust based on Undue Influence of the caretaker.

Generally, the objectors of a Will or Trust (such as the children in the above example) have the burden of proving by a preponderance of the evidence that the caretaker exercised undue influence over the decedent.  But that burden of proof can shift to the caretaker if certain facts are present.  Once shifted, the caretaker then has to prove that he did NOT unduly influence the elderly person, and he must likely prove this by clear and convincing evidence (which is a higher standard).  This is nearly impossible for the caretaker to prove because he must prove a negative—that undue influence was not present—a hard task to accomplish.  Therefore, shifting the burden is critical and nearly always fatal once accomplished.

To shift the burden of proof to caretaker, the children must prove the following three elements:

• Caretaker and Mom had a confidential relationship;
• Caretaker participated in the creation of the changed Trust and Will; and
• Caretaker unduly profited from the changed Trust and Will.

Under the above example, the burden would likely shift to the caretaker because there was a confidential relationship (since Mom was dependent on the caretaker for support and maintenance), we may have facts that he participated in the Will creation (we did not say that above, but it is a common occurrence), and the caretaker unduly profited by receiving all of the estate. 

What’s the likely outcome? More than likely, with the proper presentation at trial, the Probate Court will invalidate Mom’s Will and Trust and restore children’s inheritance.