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.

This is a guest post prepared by our friends and colleagues at Hackard Law, whose office is located in the Sacramento, California area.  They also practice in the area of Trust and Will litigation and they are outstanding attorneys.  We asked Michael Hackard and Quinn Chevalier to share some of their experience and wisdom with us and they graciously agreed to do so.  Hope you enjoy.   

The emotional and financial costs spawned by a trustee removal fight can be overwhelming. Beneficiaries often feel much maligned or even cheated. In these broken and volatile relationships, beneficiaries don’t want a trustee to go away mad, they just want them to go away. Often feeling chosen, duty bound or privileged by their appointed status, trustees do not easily surrender their reins of power. However inept, embedded trustees often threaten the rapid dissipation of trust assets by burgeoning legal bills.

The Costs of Trustee Removal: a zero sum game

We have seen the trust dissipation threat in action. Attorneys who litigate trust disputes enjoy the challenges and intricacies of trust law. This enthusiasm is understandable. Ethical rules provide  guideposts for aggressive and fair representation. Threatening to ravage trust assets to pay for the defense of an errant trustee does not fit well within these guideposts.

 While trustees are entitled to defend charges of alleged wrongdoing, the payment for the defense should be fairly allocated to the trust or to the trustee. The trustee and his/her attorneys should initially and periodically assess whether the asserted defenses are meant for the trust’s advantage versus those meant for the personal benefit of the trustee. However inconvenient and frustrating to often bereaved beneficiaries, it can take years before a court determines whether trust payments for attorney’s fees were spent to protect the interests of a flawed trustee or the interests of the trust.

Affronted beneficiaries willing to litigate a trustee removal action should be ready for the time delays and legal expenses common to the wrangling over the peculiarities of trust law and administration. California courts have experienced severe budget cuts and have responded accordingly by closing courtrooms and terminating employees. The time lags from the filing of a petition for removal to an evidentiary hearing can easily be a year or more. Petitions for appointment of interim trustees face higher legal hurdles. Courts are reluctant to appoint interim trustees absent clear wrongdoing that puts the trust or its beneficiaries in great peril.  

Attorneys hired to pursue or defend trust litigation have obligations to the court as well as to their clients. Professionalism can often support a call to be “above the fray,” yet the realities of exhausting litigation can affect the most stable of constituents, and particularly the trustees. It is not unusual for trustees to be totally unprepared for the tasks required after the death of a settlor. Affected beneficiaries, while not knowing the specific tasks required for trust settlements, can still readily observe that the trustee’s actions or inactions epitomize “amateur hour.” 

The Nuclear Option: destroying both victor and vanquished

Trust litigation contains the risk of “catastrophic victory.” Such victory can evolve from multiparty litigation that includes trustees, co-trustees, successor trustees, proposed independent trustees, beneficiaries, spouses of beneficiaries and their respective counsel. Litigators on their own initiative or that of their clients can engage in “scorched earth” tactics designed to enrage and exhaust their opponents. Such tactics often have the same effects as short range nuclear weapons, destroying both the victors and the vanquished.

Catastrophic victory aside, the removal of a trustee by its nature involves a good deal of energy. Trust provisions, statutes and case law provide a laundry list of reasons for the removal of a trustee. Clients can look at the list and mentally check the appropriate boxes. Believing, knowing, and proving, however, are three different things. The belief of trustee wrongdoing can be followed by informal and formal discovery that translates belief into knowledge. Transferring knowledge into judicial proof is a different process – one protected by rights of due process and time constrained by discovery processes, court schedules and statutory mandates.

The Undue Burden of Due Process of Law

In trust litigation, just like any litigation, writing a letter to a local court detailing what you know does not meet the demands of judicial due process. This is something not always understood by clients. In other aspects of their lives, changes can often be more timely and directly influenced by vigor and clarity of purpose. Such is not always (or ever) the case in litigation. We have all heard a variant of “the wheels of justice grind slowly.” There is truth behind the aphorism. This truth particularly tests the patience of wronged beneficiaries. Trustee fights can mimic civil war with all of its emotions and tragedies. Trust litigators are best when they can fairly and wisely advance their clients’ interests while at the same time exercise vigilance for opportunities of fair compromise or settlement. Litigation should not be a mindless and hardened exercise in wealth dissipation. As litigation battle lines are fixed and change, the end game should always be kept in mind. Catastrophic victory is no victory at all.

© Copyright Michael A. Hackard and Quinn Chevalier, 2012. All rights reserved.  Hackard Law, 10630 Mather Boulevard, Mather, California 95655

I happen to represent the best private Trustee in the world.  No offense to professional Trustees—this does not include them.  In the world of private individuals who act as Trustees, not as a professional calling, but by way of happenstance or accident, there aren’t many who do such a good job.  It’s understandable, being a Trustee is hard work, it comes with a mountain of complex obligations and liabilities and very little, if any, appreciation.  As they say, no good deed goes unpunished.

Many private Trustees make the mistake of thinking that they are acting in the shoes of the Settlors (a Settlor is the person or persons who created the Trust).  That is an entirely wrong perspective because the Settlors (being that they created the Trust) have far more leeway and freedom in how they manage the Trust estate and invest the Trust assets—they can be downright reckless if they like.  Whereas a private successor Trustee has no such leeway—they must meet a host of complex duties and obligations under California Trust law, which includes things like (1) prudent investing, (2) treating all the beneficiaries fairly, and (3) avoiding conflicts of interest. 

It is also a mistaken belief that Trustees are like CEOs of companies.  Not true.  Corporate officers operate under the “business judgment rule” that allows them to take risks and make decisions that may or may not be prudent and conservative; provided that they are acting within acceptable business judgment.  Companies are expected to risk capital in order to make money.  Trustees have no such luxury.  Trustees’ duties require them to be far more conservative and risk adverse than a corporation is allowed to be.

One guiding light principle of every Trustee, whether private or professional, should always be that the beneficiaries should be treated with a sense of goodwill and fair play.  Sounds good, but not always easy to do, especially if there is hostility in the Trustee-beneficiary relationship (i.e., sibling rivalry).  But the law does impose a duty on Trustees to treat their beneficiaries fairly—even where the Trustees do not like the beneficiaries for whatever reasons.  Some Trustees do and some most certainly do not.

So how do I know I represent the best private Trustee in the world?  Because the Trustee I am referring to meets all of these requirements.  And this Trustee exudes a constant and consistent sense of goodwill and fair play towards some very difficult beneficiaries.  This does not mean, by the way, that the Trustee is a pushover or does whatever the beneficiaries require.  That would not make for a good Trustee.  Instead, this Trustee makes hard decisions under difficult circumstances and takes all action necessary to keep the Trust administration moving forward and fairly proportioned among all the beneficiaries.  But even after going through a very tough issue, or series of issues, the sense of goodwill and fair play remains ever intact.  This is the way a good Trustee should act.   And yet, it seems to be so rare among private Trustees.  

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. 

We posted over 100 blog articles in 2011.  While we enjoy writing each of them, there are a few favorites we have over the course of the year.  Each of the posts that made our top 11 list was also very popular with readers based on comments and feedback we received.  Here is a list of our top 11 blog posts in 2011:

1.         Top 10 Books for Trial Attorneys.  We receive quite a bit of feedback from this post.  And it remains a very good list of great books to read—must reads really—for any trial attorney.

2.         Justice Isn’t Fair.  A little post on the difference between fighting for justice (which can be expensive and emotionally draining) versus obtaining a fair result from a financial perspective. 

3.         Legal Lingerie: Fighting Over Personal Property In California Trusts and Wills.  Having the word “lingerie” in a law blog title seems to get you noticed.  But still an interesting post on what happens to the tangible personal property in an estate. 

4.         Capacity Lite—How Undue Influence Can be Used To Overturn a California Will or Trust When Lack of Capacity Allegations Fall Short.  This is one of our favorite posts on how undue influence can be used to overturn Wills and Trusts—a very popular post. 

5.         Court Decision Causes Consternation for Arbitration Clauses in Trusts.  The growing use of arbitration clauses in things like insurance contracts can be a real problem for unsuspecting parties, but the use of arbitration clauses in Trusts hit a roadblock this year with the Court’s decision in Diaz v. Burkey.  This post is a quick recap of the Court’s interesting ruling.

6.         Which Will Wins the Race?  The Documents Required For a Proper Will Contest Lawsuit.  Few things are more confusing than properly filing a Will contest in California.  This post was a big hit with lawyers and laypeople alike. 

7.         Influencing the Court to Find for Undue Influence in California.  This is our second blog post of the subject of undue influence that made our top 11 list.  This is a more in-depth look at the subject of undue influence and how it can be proven in Court. 

8.         No-Contest Clauses Do Not Apply to Challenging a Trustee’s (or Executor’s) Actions.  No-Contest clauses are a very confusing area of Trust and Will litigation practice.  But one of the areas where they do NOT apply is in challenging the bad acts of a Trustee—yet so many people don’t realize their proper application.  We received a lot of feedback on this explanatory post.

9.         The Beneficiary’s Burden.  California Trust and Will lawsuits are hard on everyone, especially the beneficiaries.  While the beneficiaries don’t have any legal duties, they do have a burden in bringing the lawsuit all the same.

10.       The Settlor Made Me Do It.  The California Court of Appeals clarified in “Estate of Giraldin” when a beneficiary is entitled to an accounting and damages for breach of trust for actions taken while the trust creator is still living.  This was new law for California.  And it also prompted a call from one of the Giraldin children, which I very much enjoyed!

11.      Motions to Compel = A Necessary Evil.  When you hold the opposing party to the requirements of the Discovery Act, you’re going to have to file a few motions to compel.  Seems everyone (well not everyone, but many people) want to bend the rules of properly responding to discovery.  This is our take on filing motions to compel when necessary.

Honorable Mention.

We have just a few more favorites—it’s hard to narrow over 100 posts down to 11 (but “top 11 in 2011” is a better title than top 15 in 2011).  So here are a few extra posts that we call our “honorable mentions:”

12.       Our Video Series.  We were, and still are, very excited to post our first series of videos on our blog in 2011.  We received tremendous positive feedback on our videos (although we may look a little stiff).  This is just the beginning; we have a few video surprises in store for 2012.  Here are all of our 2011 video series.

13.       Becoming a Discovery Ninja.  Responding to discovery thoroughly and promptly is a goal of ours in every case.  Here are a few tips on how to make that happen on a regular basis.

13.       The Wayward Will of Irving Duke.  So you want to draft your own Will?  Take a lesson from Irving Duke, his use of the words “at the same moment” caused his two favored charities to lose $5 million—passing instead to his two nephews who are not even mentioned in the Will!  A lesson on the trickery of the English language.

14.       Will Capacity vs. Trust Capacity: The Mental Measuring Stick under California Law.  Well this post is not from 2011, it was posted in December 2010, but still a useful discussion on the different types of capacity.

15.       The Intentionalities and Formalities of California Will Creation.  This is also a 2010 post that gives a basic primer on the elements required to create a valid California Will.  This is the same format we use to teach law students in our class at Chapman Law School.

We hope you enjoy these posts, and many others we have provided in 2011.  We look forward to giving you even more useful information in 2012.  

Happy New Year!

We should never forget when reading a written decision by any Court that there are people—real, live, breathing people—behind the words laid down in the Court’s opinion.  I was recently reminded of this fact when I received a call from Tom Giraldin, son of William A. Giraldin, whose estate I discussed in an earlier blog post.

The Estate of William A. Giraldin has been the source of many year’s worth of litigation over various Trust issues (discuss in more detail in my previous article).  And in that previous article, I said that a son of William Giraldin, specifically Tim, was sued by “his siblings.”  Well I had that slightly wrong.  Tim was not sued by all of his siblings, but actually sued by four (namely, Patricia Gray, Christine Giraldin, Mike Giraldin and Philip Giraldin) of the Giraldin’s seven older children—my mistake.

But that’s not the interesting part.  The more interesting part is talking to Tom Giraldin and getting an inside look into the people and family relationships that underlie the Appellate Court’s opinion in Estate of Giraldin.  What type of person was William A. Giraldin (a strong business man), how did the facts come about (years of living), and did the Appellate Court get it right (yes, so says Tom)?

If you think about it, a lot of actions have to occur before a California Trust or Will case is heard and decided by the Appellate Court.  People have to live their lives, things have to happen in those lives, someone dies, people get upset and sue, the lawsuit takes over five (5) years to wind its way through the Courts, a party loses, decides to appeal, and then we get the Appellate Court opinion—coming at the end of what may be over a decade (or more) of actions in the making (both inside and outside of Court).  Whew!  Makes me tired just thinking about it.

But the lives lived and the things that occur during those lives are the substance of these cases.  And while the Appellate Court may provide us with a pretty cut-and-dry rendition of the facts, life is never so cut and dry.  And the way in which each party, each child, sees those facts is also very different—which is why the lawsuit is filed in the first place.

So the next time you read about the facts of a case in the Courts, in the newpaper, on the web, or in someone’s blog; its interesting to keep in mind that these are people we are reading about and they may have plenty of other facts behind the case that never come to light.

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. 

One of the hardest things to understand for people who do not have experience with our judicial system is the amount of time it takes to resolve most matters in court.  Why the wait?  In part, it’s due to the backlog of cases in most courtrooms and the lack of funding these days to hire the necessary amount of judges and other court staff to process these cases.

But there is also a built-in delay in California Trust, Will, Probate and Estate cases, a concept known as due process.  “Due process of law” is the term for how we must administer cases in our system of justice.  Due process requires a certain procedure to take place before a court makes a binding decision in your case.  In other words, the court cannot simply look at the documents that are initially filed by each side and make a snap decision.  This is true even where the facts seem pretty clear-cut and the law directs a certain action based on those facts; or even where the opposing party’s objections are baseless or frivolous.

Before any binding decision is made by the court, the court must first conduct a trial where each side is given a fair chance to bring whatever relevant evidence they have to substantiate their case.  Once the evidence (both documents and testimony) is presented at trial, then the court can weigh the evidence and make a decision.  Note that in California, nearly all Trust, Will, Probate and Estate cases are decided by a judge alone, as opposed to a jury as used in all other type of civil cases and all criminal cases.

A typical life-cycle of a Trust and Will case begins with the filing of an initial petition (Trust and Will matters usually use “petitions” as opposed to “complaints,” but they are the same in that each is an initial document that kick-starts the lawsuit).  Once that petition is filed, it is set for an initial hearing.  The initial hearing IS NOT a trial.  It is simply the first chance the court has to review the petition and determine if everything is ready to proceed—we call this “being at issue.”  If notice of the petition is not properly served or the petition is defective in some other respect, then the petition is not “at issue” and the initial hearing will be continued to give the petitioning party time to correct the defects. 

Each petition filed with the Court in California Trust and Will matters is reviewed by a probate examiner (which is either a lawyer or paralegal employed by the Court) to determine if the petition is properly prepared from a procedural standpoint.  They don’t test the validity or weight of the facts that are stated in the petition, they just make sure all the technical requirements are met for a properly filed petition.

Once the Petition is “at issue,” the opposing party has the right to show-up at the hearing and make a verbal objection to the petition (see California Probate Code Section 1043(b)).  Once made, the opposing party is given a certain amount of time in which to file written objections.  Once all objections have been filed, then the Court will determine how much time is required by the parties to conduct discovery—which includes issuing subpoenas, requesting documents and questions from opposing parties, and conducting depositions.  There may be disputes regarding discovery along the way, which must be sorted out with various motions to the Court.  Once the parties have completed discovery (or are close to it), then the Court will finally set a trial date. 

It is only at trial that the Court receives evidence and then weighs the evidence to make a binding decision in the case. 

As you can see the process, from start to finish, can easily take anywhere from 1 to 5 years depending on the issues encountered, the number of discovery and other fights along the way, and the amount of evidence that must be collected.  All in the name of “due process.” 

There are many cases in which a beneficiary is abused at the hands of his or her Trustee or Executor.  Stewart R. Albertson discusses his definition of an abused Trust and Will beneficiary.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

Every beneficiary of a California Trust and Will has a basic right to information.  They have a right to see the Trust or Will document(s), they have a right to asset information, they have a right to full disclosure.  Yet not every Trustee or Executor complies with requests for information.  This video describes a beneficiary's basic right to information.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

Our lates video post describes the concept of Lack of Capacity in California Trust and Will creation.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

This video post is our informal discussion of why we practice law.  It is important for us to know our purpose in practicing law.  In fact, we put our purpose on the first page of our website, and we talk about it constantly.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

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.

There is an old saying in the law that goes “first in time, first in right.”  For Wills, the opposite is true—last in time, last in right.  Typically the last valid Will wins.  But what if the last Will is not valid?  That could allow an earlier Will to apply instead.  And it is this dispute—last Will versus second-to-last Will—that is at the heart of nearly every Will contest lawsuit.

Of course, a Will cannot be overturned just because the heirs or beneficiaries don’t like the Will terms.  There has to be some legal basis to invalidate the Will (see our earlier blog post on invalidating a Will).  Once a legal basis is determined, it’s time to get down to business; actually filing the Will contest.

A Will contest lawsuit is unique in that it requires a few steps, and a few different filings, before the lawsuit is properly “before the Court” (which just means all the correct paperwork is filed so the Court can handle the matter).  Let’s walk through the steps for a properly filed Will contest lawsuit:

Step 1 – Petition for Probate: You have to open a probate estate.  In California, a Will is not is not a Will until it is admitted to probate.  The procedure of admitting a Will to probate is the Court’s method for proving that the Will is valid.  Before being admitted to probate, a Will is simply evidence of a potentially valid Will.  Once admitted to probate, a Will is, by law, a valid Will.

So whether you are trying to admit the last Will or an earlier Will, you must ask the Court to admit the Will to probate and that requires a Petition for Letters Testamentary (also referred to as a Petition for Probate).  Under the Petition for Probate, you recite the facts as they pertain to the Will you want admitted and then you must sign the Petition and file it with the Court. 

What if the opposing party has already filed their own Petition for Probate?  No problem, you file your own Petition for Probate as well (they are referred to as “competing petitions,” but you use the same form whether you’re filing first or second).  It makes no difference who files first, as long as you file before the opposing Will is admitted to probate.

Step 2—The Objection.  The next step is a separate filing called an objection to probate of Will as prescribed by Probate Code Section 8250. This is the actual Will contest filing where you explain why the other person’s Will is invalid and what legal basis (or bases) you are using to dislodge that Will.  A Will contest objection under Section 8250 is unique under the Probate Code in that it is the only probate filing that requires the issuance of a summons (like the ones used for civil complaints).  Both the objection and the summons must be personally served on everyone (and I mean everyone) mentioned in the Will you are trying to invalidate, along with all of the decedent’s heirs (if they are not otherwise mentioned in the contested Will). 

Step 3—Prove your case.  At trial, the proponent of the contested Will must first prove due execution of the Will (which means that it was properly executed as set forth under Section 6110).  Once execution is established, it is then the contestant’s burden to prove any of the legal grounds to invalidate the Will, including lack of capacity, undue influence, fraud, duress, or revocation.  Never forget what your burden is at trial because it will guide your actions in conducting discovery beforehand.

After taking the right steps, your Will contest is on its way through the Court system.  Now the work really begins….

One of the advantages of creating a revocable, living Trust is the ability of the successor Trustee to quickly and smoothly take control of the Trust assets after the Settlor (i.e., Trust creator) dies.  But this can also be a burden to a beneficiary, or a disinherited heir, who intends to contest the Trust terms.  It takes time to prepare, file, and have the Court hear a Trust contest.  In the meantime, the Trustee of the Trust is typically free to go about her business managing, and even distributing, Trust assets to the named beneficiaries—an alarming prospect to a contesting beneficiary.  The Trustee may even be able to empty the Trust of assets before the Trust contest is ever resolved.

Therefore, it is the contesting beneficiary’s duty to seek assistance from the Court to freeze the Trust assets, or at least put restraints on their transfer, pending the outcome of a Trust contest (many of the same methods also apply to Will contests, but a Will cannot be administered until after an Executor is appointed and the contest will prevent an Executor from being appointed—not so in Trust administrations).

What can a contesting beneficiary do in this situation? 

In California, the rules of general civil procedure apply to Trust and Will cases.  This allows a party to a Trust or Will matter to use civil discovery procedure, civil motions, and other forms of pre-judgment relief, such as Temporary Restraining Orders and Preliminary Injunctions (CCP 525 et seq.).  Here are a few actions a party can take to preserve Trust assets:

1.            Lien on Real Property– Notice of Pendency of Action (or “Lis Pendens”, I’ll refer to it as a lien in this post) is one of the easiest ways to secure real property pending the outcome of an underlying Trust and/or Will action.  But there’s a catch.  The underlying lawsuit must involve a Real Property Claim, which is defined as one that would affect title to, or the right to possession of, specific real property.  See California CCP 405.4.  In other words, the lawsuit must directly relate to who will possess title to the real property.  Thus, suing a Trust that has real property may or may not be enough to establish a Real Property Claim. 

For example, suing a Trustee for not managing rental property correctly is not a Real Property Claim because you would not be challenging who holds title, your just challenging the management of the real property by the Trustee.  Whereas, suing a Trust for exclusion of a beneficiary who would have had a right to receive title to real property had the Trust not been improperly amended shortly before death would qualify as a Real Property Claim because it affects who ultimately will hold title to the subject real property.

The advantage of using a Lis Pendens lien is that it is easy to prepare and record.  Once recorded it automatically secures the real property and prevents the property from being sold or refinanced until the lien is released.  The disadvantage of using a lien is that if you file one without a Real Property Claim at issue in the underlying suit, then you can be held liable for the opposing party’s attorneys’ fees and costs incurred to set aside the lien.  So this type of lien should only be used when there is a proper basis to do so.

2.            TRO and Preliminary Injunctions.  Trust and Will cases can be subject to Temporary Restraining Orders (TRO) and Preliminary Injunction to ensure that the Trust assets are not wasted.  But just as in civil matters, TRO’s and injunctions are not easy to obtain from the Court.  They are considered extraordinary remedies and you must establish (i) a likelihood of prevailing on your claim, and (ii) a right that cannot be adequately compensated by money damages.  The classic example is real property, which is considered unique under the law. 

However, it is possible, and I have had cases, where a TRO and injunction are ordered by the Court to ensure that a Trustee is not personally taking money from the Trust.  There has to be proof that the Trustee is taking money, but with that proof it is a possibility to obtain an injunction that will protect Trust assets until the underlying contest is resolved. 

My next post of this topic (Volume 2) will include:  (1) Petition for Instructions and Blocked Accounts, (2) Ex Parte Petition to Suspend Trustee and (3) Trustee’s Bond.

Trust and Will lawsuits often provide different paths to the same destination. My client, a trust beneficiary, recently filed a lawsuit against a trustee of a California trust for financial elder abuse, and at the same time sued for undue influence to set aside the Trust amendment created at the hands of the Trustee/Abuser. In this case the Trustee ended up with a significant portion of the Trust and my client was effectively disinherited.

The Trustee, hoping for an easy out, tried to convince the Court that the elder abuse claim should be dismissed summarily (called a demurrer) because the claim was based on a transfer by Trust, and in his opinion, the abuse of the elder did not actually occur until the trust creators died and their Trust became irrevocable (the “taking argument”). His claim was that the beneficiary cannot use the same undue influence facts to (1) overturn the Trust amendment, and (2) sue for financial elder abuse.  In other words, he may have been an undue influencer for purposes of the Trust amendment, but not for purposes of financial elder abuse.

But California law disagrees. Specifically, there are three different ways in which financial abuse may be pleaded under the Elder Abuse Act found at Welfare and Institutions Code section 15610.30(a), which states a person is guilty of financial elder abuse if they take property of an elder for wrongful use, or with intent to defraud, or by way of undue influence. (Welf. & Inst. Code, § 15610.30, subdivisions (a)(1), (a)(2), and (a)(3).) Thus, the act of undue influence used to overturn a California Trust (or in this case a Trust amendment) can also be used to establish a claim for financial elder abuse. Further, the Elder Abuse Act defines a “taking” to include the receipt of assets by a “testamentary instrument”, which includes California trusts and wills. (Welf. & Inst. Code, § 15610.30(c).)

Does this mean my client would get double damages, one with the Trust set aside and another in the amount of the property taken? No. But it does mean my client can proceed on both claims and take full damages under either one. For example, the elder abuse statute allows for punitive damages and attorneys’ fee whereas the Trust set aside claim does not.

The trial court heard oral argument on the demurrer on May 5, 2011. After hearing oral argument, the trial court was persuaded that the financial elder abuse claim could go forward based on undue influence as it was properly pleaded in my client’s lawsuit, and was supported by the Elder Abuse Act.

The next time you see facts showing a “garden-variety” trust or will contest, think about whether those facts also support a claim based on financial elder abuse.

In an earlier blog post, I shared a handout we give our clients so that they will know what to expect in their lawsuit.  All lawsuits are different, but there is one thing you can count on in every lawsuit: uncertainty.  A case can go from looking good, to looking bad, to looking good again all based on the facts and evidence discovered throughout the litigation process.

Thus, each case must be built, fact by fact, until the best case possible is assembled and rolled out for trial.  It’s a bit like making lasagna, it can only be done one layer at a time.

For example, in a typical Trust or Will contest, there are some facts known to the parties at the outset, such as the general condition of the decedent.  If they are challenging the Will or Trust based on a lack of capacity, they may know that the decedent suffered from dementia.  But did the dementia cause a lack of capacity at the time the contested document was signed?  This takes medical evidence and expert testimony to determine.  Once the medical evidence is received it can change the case--for better or worse. 

After every step of the discovery process (the process whereby we obtain facts and evidence) the view of a case can change.  Yet each stage provides us with another opportunity to layer in more facts and legal positions regarding the case.

And so we build, layer by layer, until we have the best case possible to take to trial.  Or the best case possible to take into a mediation for settlement purposes.  Either way, it takes a process, some patience, and ever increasing facts and evidence to blend a case together for just the right mix needed to prevail.

No one really wants to inherit their parents unmentionables after they die (at least I don't), but what about all the other personal items left behind?  From jewelry, furniture and antiques, to china, silverware, dishes and momentos, everything is an object over which a fight can ensue between siblings. 

The authority in the area of transferring personal items is a book, and now a website, called "Who Gets Grandma's Yellow Pie Plate."  It is a great example of how family discord can erupt over the smallest of items.  Of course, "smallest" in terms of value in a monetary sense, but not so small in terms of sentimental value-which is precisely why these fights can be so personal. 

Exactly who is entitled to a decedent's personal items (referred to as “tangible personal property” in legal jargon) and how is that property passed out after death?  Well there is a right way and a wrong way, and it’s hard to enforce the right way.

A few right ways.

Technically the property is supposed to be inventoried and then distributed according to the Trust or Will terms.  If the Trust or Will provides for specific items to go to specific people, then that must occur.  If not, then the beneficiaries can discuss who wants what and the Trustee or Executor must make a final decision in the event of a conflict.  Any property left over is sold and the proceeds from sale split evenly among the beneficiaries.

Or better yet, the parent or grandparent can give an item of personal property before death.  This is ideal because (1) it prevents any arguments relating to the parent's intent, and (2) it allows the parent or grandparent to enjoy the act of giving (and witness the excitement of receiving) the gift.  It also ensures that the gift will be made.

The Wrong Way.

Imagine the decedent's heirs going through his or her house and randomly taking personal objects without any authorization or direction.  They refuse to follow the terms of the Trust or Will and they fail to wait until a Trustee or Executor is in place to sort out the details.  Once a Trustee is in place, it is too late, the property is gone and trying to recover it is nearly impossible. 

The problem with the wrong way to pass personal items is that (1) it happens all the time, and (2) it’s hard to prevent.  It really depends on the people involved.  Will they wait to play by the rules or are they just going to do what they like?  And the costs involved in trying to recover personal property is far too high to justify doing it in most cases. 

At a minimum, a Trustee or Executor should try to secure the decedent's home as soon as possible and take possession of the personal items as quickly as possible.  Of course, it’s not always so easy to know which personal items people will want.  Sometimes it can be the least obvious item, such as a pie plate. 

People influence others every day, and most types of influence simply persuades a person to make a certain decision--where to eat, what to buy, who to like, you get the idea.

Sometimes influence can get out of hand and become "undue."  What separates normal influence from undue influence?  Simply put, undue influence is coercion.  It typically occurs when a person has a weakened mental state (such as with dementia or Alzheimer’s) and her intent is replaced with the intent of the undue influencer.  In other words, the Will or Trust the decedent creates no longer represents her intent, it represents the intent of the wrongdoer.  The wrongdoer is said to have “supplanted the intent” of the decedent (that term always makes me think of brainwashing—another good analogy).

The weakened mental state required to establish undue influence is not unlike the mental defect needed to prove lack of capacity.  Yet, with undue influence, the various elements of capacity are not required.  For example, capacity for the creation of a Will requires that a person knows (1) the nature and extent of their property, (2) their relationships to the persons who are to receive property under the Will, and (3) that they are making a Will.  And a Will is presumed valid unless the person lacked capacity at the very moment they signed the Will.  Thus, a person with dementia, who may have good days and bad days, could conceivably have capacity on the day of signing a Will and then lapse back into incapacity the next day.

When there is little or no medical evidence around the Will signing date, proving a lack of capacity at the time the Will was signed may be difficult.  But proving undue influence is another matter because all we need is a weakness of mind, plus some facts showing that weakness was taken advantage of by the wrongdoer.  Once established, it’s irrelevant whether a person had capacity when signing a Will.  Instead, the question turns on whether the person’s intent is reflected in the Will.  This is why I call undue influence “capacity lite.”

What’s more, with undue influence we have the ability at times to shift the burden of proof on to the opposing party (unlike capacity where the burden always remains on the person contesting the Will).  And that is a huge advantage when trying to overturn a Will.  How do we shift the burden?  We must prove that (1) the wrongdoer was in a confidential relationship with the decedent (such as principal and agent, or caregiver, etc.), (2) the wrongdoer participated in the Will creation, and (3) the wrongdoer profited from his actions (i.e., he received something under the Will or Trust).  Once established, the burden is passed on to the wrongdoer to prove that he did NOT engage in undue influence, which is very difficult to overcome.

In sum, undue influence can be a powerful weapon in trying to overturn a Will or Trust, when used properly.  And it can give a person contesting a Will or Trust some hope when capacity appears hard to prove.

My law partner is fond of saying that "A lawsuit is a marathon not a sprint."  I like his quote because it sets the expections of what a client can expect to incur during the course of a lawsuit.  It does not matter what type of suit it is, be it Trust, Will, Estate, Probate or Civil litigation, the general overview of what to expect is the same.

To give our clients a snapshot of the litigation process, we have prepared a memorandum of what  clients can expect during the course of their lawsuit (What to Expect In Your Lawsuit.pdf).    It does not answer every litigation question, but it provides a basic primer on the litigation process.  We've decided to share that same memorandum here on our blog so everyone can see our basic primer on what to expect in your lawsuit.

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.   

Our job as lawyers is to solve our clients’ problems.  Every day, in many different cases, we have issues to sort through and resolve--some big, some small.  In reality all lawyers are called on to solve their clients’ problems, but some solve problems better than others.

The key to solving a client’s problem is caring about their problem to begin with.  Ever try to solve a problem you did not care about?  It's nearly impossible to come up with a good solution when you could care less about the outcome.  But when we put ourselves into a client's shoes and care about their problem as if it were our own, problem solving becomes more meaningful and necessary.

Being a problem solver does not mean getting a client everything he wants or deserves. When it comes to legal problems, our ability to reach a solution is impeded by the opposing parties and attorney(s) in the case.  So a good, or even a great, resolution rarely means getting all you want and deserve.  But it does and should mean getting as much as you can while being reasonable about your options and choices.

This is where creativity comes in, the art we truly embrace. Getting as much as you can, or reaching your desired result, often takes creativity.  Creativity in the solutions we propose to the opposing side, creativity in how we fight the opposing attorney to reach a resolution, and creativity in looking at the available options.  Nothing is set in stone, every problem and every case is new and unique, which provides us with a new opportunity to be creative and find a good solution.

We plan to have guest posts from time to time on our blog. Our first guest post, by Richard D. Cleary and Thomas E. McCurnin, can be viewed by clicking here. Messrs. Cleary and McCurnin surmise that a recent case decided by the Court of Appeal, Donahue v. Donahue, may have far-reaching consequences for bank trustees.

As an aside, I litigated a case against Mr. McCurnin several years ago. I can truly say it was an enjoyable experience. Also, I've had the privilege of arguing a court of appeal case in front of Justice Richard M. Aronson, who wrote the opinion for Donahue.

I hope our blog readers will enjoy Mr. McCurnin's and Mr. Cleary's article entitled "New California Decision Puts Bank Trustees at Risk for Attorney Fees".

Here’s a situation we see often: Sally dutifully creates a California Trust, and at the same time signs a “general property assignment” to the Trust, which states in effect, “I, Sally, hereby assign, transfer and convey to myself as trustee of my trust, all my right, title and interest in all property owned by me, both real and personal and wherever located.” (Notice Sally did not particularly identify any of the assets she assigned to her trust).

Several years later Sally dies. Tom is the successor trustee of Sally’s trust. Tom finds out that Sally failed to formally transfer title to several stocks worth $200,000 to her trust before her death.

The question arises—is the “general property assignment” sufficient to confirm the stocks are owned by Sally’s Trust? Or do the stocks need to be probated? Until recently the answer was usually “no”, the general assignment is not enough to confirm the stocks are owned by Sally’s trust, requiring Tom to file an expensive and time-consuming “Petition for Probate” to have Sally’s stocks “poured over” into her Trust.

But now, as of January 26, 2011, it is likely that Sally’s “general property assignment” is sufficient to confirm the stocks are indeed owned by Sally’s Trust—alleviating the need of filing an expensive and time-consuming “Petition for Probate”.

Justice Kenneth R. Yegan, writing for the California Court of Appeal, confirmed—that in a case like Sallys—a “general property assignment” is effective to transfer ones stock to his or her trust, even though the “general property assignment” does not particularly identify the stock. (Presumably, the general assignment would work for all non-real property assets, i.e., bank accounts, brokerage accounts, retirement accounts, life insurance, etc.)  

This is good news for the family members of those who forget, or by some other kind of oversight, fail to properly fund non-real property assets into their trust before they die. Now, under California law, all non-real property assets in excess of $100,000 in value may likely be confirmed to be trust assets by way of a general property assignment (e.g., “I …, hereby assign all of my property to my trust”). 

Unfortunately, as Justice Yegan points out, real property (houses, etc.) cannot be confirmed as trust assets by way of a “general assignment”, because real property must be either formally transferred to a trust by way of a deed, or particularly identified in an attached schedule to a trust. In cases where real property is not sufficiently identified as a trust asset, a petition for probate will most likely be required.  

Usually the best course of action is to have the “deed” to ones real property titled in the name of the trust. Or, at a minimum, have a schedule attached to the trust that particularly identifies the real property (i.e., “That certain real property commonly known as 3750 Santa Fe Ave., Riverside, CA 92507”).

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.