An interesting article from The Probate Lawyer Blog – Farrah Fawcett’s estate, and ownership of a famous Andy Warhol painting of Fawcett, Click Here

NY Times article link, re killing medicaid the California way by reducing medical provider reimbursement rates.  Pursuant to the article medicaid serves 50 million poor and disabled Americans.
Click Here

Click the following link for a discussion about British Columbia Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence. The guide is timely to a change in legislation in British Columbia that when the new Wills, Estates and Succession Act becomes effective. Click Here

The following is a link to a short video summarizing what a California conservatorship is, when it can be granted by a court, and when it can be helpful, Click Here.

Portico Management Group, LLC v. Harrison (California Court of Appeal, Third District, Case No. C062060, December 28, 2011) reaffirming that a trust is not an entity that can be sued – instead, it is appropriate to sue the person who is the trustee of the trust – i.e., the party to the case should be named similar to the following manner: “(insert the trustee’s name) as Trustee of the (insert the name of the trust) Trust Dated . . . .”

Estate of Roger Kampen (California Court of Appeal, First Appellate District, Case Nos. A129849 and A130313, November 14, 2011, Pub. Order December 9, 2011).

The Court’s decision in Kampen is lengthy. It is a case that should be read if you are involved in issues relating to damages that can be recovered against an executor for breach of fiduciary duty, particularly in the context of damages that might be recoverable against an estate executor for significant delay in the distribution of estate assets following an order of distribution. The trial court did award damages against the executor including loss of compensation and the loss of value to the estate caused by the executor’s delay. However, the beneficiary appealed, contesting the trial Court’s manner of calculating damages, and also the trial Court’s denial of interest during the time of delay following the order of distribution. The beneficiary argued that the damages should have been larger and should have included some manner of calculation relating to the beneficiary’s lost claimed lost opportunity costs.

In summary, on appeal the Court affirmed the trial court’s manner of calculating damage caused by the executor’s delay, and held that interest did not accrue on the value of the estate following the order of distribution. The decision discusses many sub-issues pertaining to the calculation of damages in the context of an estate. For example, the Court held that an order of distribution is a final judgment that is in rem in nature, but it is not a money judgment; speculative damages are not recoverable; and the beneficiary of the estate “is not entitled to interest it could have earned on the cash in the estates. An executor is similar to a trustee in many respects but, unlike a strict trustee, an executor has no statutory duty to invest money belonging to the estate.” The Court also upheld the trial court’s partial holding against the beneficiary for laches relating to the beneficiary’s delay in enforcing its rights.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.

The following is a link to materials from my recent bank presentation discussing new California trust, estate, elder and fiduciary cases during the past year or so, Click Here.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.

Estate of Irving Duke, California Court of Appeal, Second District, Case No. B227954, December 4, 2011.

Decedent Irving Duke’s holographic will provided that on his death all of his property shall pass to his wife Beatrice, and that if Beatrice died at the same time that Decedent died all of his property was go pass to two charities.  The will did not address the situation where Beatrice might predecease Irving.  Beatrice did in fact die five years before Irving.  The two charities petitioned for probate of the will.  Two of Decedent’s nephews, who were not named in the will, argued that the condition under which the charities would have been entitled to distribution had not occurred, and that as a result Decedent’s estate should pass pursuant to the intestacy statutes.

The court agreed with the Decedent’s nephews, holding that as the will was unambiguous, extrinsic evidence could not be admitted in an effort to establish the Decedent’s intent, nor could an argument be made as to the construction or reformation of the will.  As the will was unambiguous, the clear result was that the Decedent’s assets should pass in accord with the intestacy statutes—it would be improper conjecture or speculation for the court to engage in an effort to correct the dispositive clause.

Although I don’t necessarily disagree that the will was unambiguous as far as its terms provided, it seems clear the will failed to address the situation where Beatrice predeceased Irving.  Thus, it can be argued that the will was ambiguous as to the events that did actually occur, i.e., that Beatrice predeceased Irving. It is also a maxim in California probate law that a Decedent’s estate should pass as the Decedent intended.  Based on the wording of the will, it is also no more certain that Decedent intended his estate to pass by intestacy.  Accordingly, it is arguable that extrinsic evidence should have been admitted as to Irving’s intent.  The court’s ultimate bright-line rule doesn’t necessarily do justice to the Decedent’s intent.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.

In Conservatorship of Cornelius (California Court of Appeal, First Appellate District, November 15, 2011, A131495), the court held that a temporary conservator was entitled to recover her attorneys’ fees and costs for the temporary conservatorship although she dismissed the permanent conservatorship.

A daughter was appointed temporary conservator of her father for six months, but then dismissed her petition for permanent conservatorship.  The evidence established a clear need for the temporary conservatorship as the father was susceptible to undue influence, fraud and financial abuse; however, the father’s condition and situation improved during the temporary conservatorship and the father objected to the permanent conservatorship.  The daughter petitioned for attorneys’ fees and costs after dismissing the petition for permanent conservatorship.  The father objected to his daughter’s recovery of the attorneys’ fees and costs.

The court affirmed the daughter’s recovery of attorneys’ fees and costs, holding that §§2641(a) and 2642(a) make no distinction between temporary and permanent conservators, and that a temporary conservator is entitled to reimbursement of attorneys’ fees and other expenses properly incurred for the conservatee’s benefit during the term of that temporary appointment regardless of whether a permanent conservator is ever appointed.  Section 2641(c) also provides that a conservator may be compensated for her good-faith, but unsuccessful, opposition to a petition or other request or action by the conservatee.

“The petition to appoint a permanent conservator, and appointment of a temporary conservator pending resolution of that petition, may well benefit the conservatee even if a permanent conservatorship is never established. It is benefit to the conservatee, not establishment of a permanent conservatorship, that a court must look to in deciding whether a temporary conservator is entitled to reimbursement.”

“The relevant question is whether [the] temporary conservator . . . acted in good faith, based on the best interest of her father . . . in petitioning for conservatorship and in opposing his request to dissolve it.”  Similarly, expenses incurred in seeking disqualification of the private attorney who was retained by the father were also properly awarded as there was a legitimate dispute regarding the capacity of the father to contract for legal services.

The general rule in California is that you are presumed to have read, understood and intended the wording and terms of a document that you sign, including a will or trust.  It is difficult to prove that someone was unduly influenced, coerced or tricked into signing a will or trust that contains terms that do not reflect that person’s natural intent.  This is especially true if the person committing the undue influence, coercion, fraud or trickery has a close and/or long-term relationship with the person who is signing the will or trust.  So . . . why wouldn’t a bad or greedy person try to inherit by undue influence, coercion, fraud or trickery?  What do they have to lose?  Not much really, assuming that they were not inheriting much anyway if it wasn’t for their wrongful acts.