A party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute

David Tate, Esq., Royse Law Firm, California (Silicon Valley/Menlo Park Office, with additional offices in San Francisco, Los Angeles and Orange County), http://rroyselaw.com/

The following is a brief discussion about a new California case in which the court held that a party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute. If you have never been involved in the anti-SLAPP statute, it is a big deal. The case is Urick v. Urick, California Court of Appeal, Second Appellate District, Case No. B278257 (October 5, 2017).

Summary. Filing a petition for instructions in probate, claiming that a trustee or beneficiary had triggered a no contest clause by filing her prior petition to reform or modify a trust, is a claim that triggers prong one of the California anti-SLAPP statute Cal. Code Civ. Proc. §425.16, which means that the party seeking to claim and enforce that the no contest clause was triggered must be prepared to satisfy prong two of the anti-SLAPP statute which requires him to sufficiently establish a reasonable possibility of prevailing on the claim that the no contest clause was triggered and violated.

Takeaway. If you bring a claim to enforce a no contest clause based on an opposing party’s prior petition filed in probate, you must be prepared at the time of your filing to establish to the court, based on evidence and declarations, that you have a reasonable possibility of prevailing on your claim that the other party had triggered and violated the no contest clause.

Urick is also interesting for the court’s discussion whether the previously filed petition to reform or modify the trust triggered the no contest clause, including the discussion whether that previously filed petition was filed by the petitioner as a beneficiary of the trust or as the trustee of the trust and whether there was really a distinction that mattered under the facts of the case.

Other thoughts about the anti-SLAPP statute. I have been involved in Cal. Code Civ. Proc. §425.16 motions. It is my opinion that it is a deeply flawed statute except possibly in really obvious and clear situations and in those cases the party who has those defenses has other remedies such as a demurrer, motion to strike, or motion for summary judgment or summary adjudication. The anti-SLAPP statute should be revoked or very significantly amended and limited. To add further injury, the filing of an anti-SLAPP motion automatically stays all discovery unless a motion to allow and compel discovery is brought and the court grants that motion – thus, strategically a party might bring an anti-SLAPP motion simply to see if they can prevail even if their arguments and chances of prevailing are not good – and the statute further provides that if a party prevails on an anti-SLAPP motion they are entitled to attorneys’ fees whereas if a party defeats an anti-SLAPP motion the statute does not provide that they are entitled to recover attorneys’ fees. The anti-SLAPP statute is ripe for abuse or use in situations that might be counter to other public or judicial policies, which the court in Urick appeared to recognize, but as the court noted, nevertheless the statute is still on the books and is applicable unless and until the Legislature does something about the statute.

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Trustee and Beneficiary Responsibilities and Rights – Discussion Paper

If you are a trustee you need to know your responsibilities, and if you are a beneficiary you should know your rights. The following is a summary paper discussing both the responsibilities and the rights. Of course the California Probate Code is considerably longer and more detailed than the points discussed in this paper, there are also case law interpretations, and every case and situation is unique, but the paper will give you good insight. Click on the following link for the paper and discussion, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 01052016.

Dave Tate, Esq., San Francisco

Attended the Silent Trusts Presentation – San Mateo Co. Bar Estate Planning

Yesterday I attended the monthly San Mateo County Estate Planning and Probate Section lunch presentation. This presentation was on silent trusts, presented by attorneys Paul Barulich and Matthew Matiasevich. An interesting discussion about the planning, although rather limited planning, that parents can do in California to keep an irrevocable trust private from the beneficiaries, i.e., so that the beneficiaries don’t even know the trust exists. When might trustors desire this type of privacy from beneficiaries? One scenario could be when parents want their children to strive and achieve at least into their twenties without the certain knowledge that they will be receiving substantial trust assets.  At least based on responses by attendees, not many estate planning attorneys are preparing silent trusts.

One noted tidbit of information: even if the trust is drafted as a silent trust, trustee/trust duties under California Probate Code sections 16060.7, 16061 and 16061.5 are not waivable. Thus, for example, in some situations the trustee must still provide the terms of the trust and report to the beneficiary by providing information relating to the administration of the trust relevant to the beneficiary’s interest, if the beneficiary requests the trustee to do so.  Accordingly, even if a prospective beneficiary does not know that a trust exists, i.e., because the trust is silent, a prospective beneficiary should always ask a suspected trustee to provide information about any trust in which the prospective beneficiary is a beneficiary. Upon that request the trustee must provide some information.

Enjoy.

Dave Tate, Esq. (San Francisco / California) – Civil and Estate, Trust, Conservatorship and Elder Abuse Litigation – member of the Estate Planning and Probate Section Executive Committee.

My other blog, http://directorofficernews.com.

Top 10 List of Trust and Estate Beneficiary Rights

Click on the below video for my Top 10 List of Trust and Estate Beneficiary Rights.  I have also posted below the video the text of the discussion.  And feel free to forward this blog post to anyone who would be interested, including beneficiaries, and trustee and executor fiduciaries.  Thank you.  Dave Tate (San Francisco and California)

Text:

Hello, I’m Dave Tate. I’m a San Francisco, California civil, trust, estate, conservatorship and elder abuse litigation attorney.

After years of practice, the following is my top 10 list of trust and estate beneficiary rights in most situations.

And correspondingly, if you are a trustee or executor with fiduciary duties, satisfying these responsibilities will help put you on a good path. The following list is not in any particular order.

Here are the top 10 trust and estate beneficiary rights.

1st. To have the trustee or executor follow the terms of the trust or will.

2nd. To have the trustee or executor act and interact in the best interests of the beneficiaries.

3rd. For the trustee or executor not to self-deal.

4th. To have the assets go to the people who the Decedent would have intended if the trust or will isn’t clear or doesn’t reflect the Decedent’s true wishes.

5th. For the trustee or executor to prudently invest, spend and maximize the trust or estate assets.

6th. For the trustee or executor to take possession of and safeguard the assets.

7th. For the trustee or executor to timely and prudently manage and administer the trust or estate.

8th. For the trustee or executor to make timely distributions in accord with the terms of the trust or will.

9th. For the trustee or executor to reasonably provide timely information about the trust or estate, the assets and its management, as required. Note, as a beneficiary your requests must be reasonable and appropriate.

And 10th. For the trustee or executor to provide timely and proper accountings, as required.

If you are a trust or estate beneficiary you need to know your rights. Similarly, if you are a trustee or executor, you need to know and satisfy your duties and responsibilities to complete your tasks and avoid problems and possible liability. That’s it for now. Thanks for listening.

Dave Tate, Esq. (San Francisco and California), http://californiaestatetrust.com

California Trustee – What Would Keep Me Up At Night – February 2015


Please also forward this blog post to anyone else who would be interested. At the request of friends I have also posted below the video the text of the discussion.  Thank you.  Dave Tate

Text:

California Trustees – What Would Keep Me Up At Night – February 2015

Hello I’m Dave Tate. I’m a San Francisco litigation attorney and I also represent trustees in trust administrations. This discussion is for California trustees, and what would keep me up at night February 2015.

Trustee responsibilities are extensive and they arise from different sources including the wording of the trust itself, statutes and case law. Of course you have to cover all areas of your trustee responsibility, but here is my list of primary issues that would keep me up at night as a trustee. This list is not in any particular order.

First, do you understand what the trust says and requires?

Second, have you marshalled and safeguarded the assets that are in or that are supposed to be in the trust? Are they in the trust and under your control?

Third, do you really understand your legal responsibilities including the wording and requirements in the trust, what the probate code and case law require of you? As a trustee you are a fiduciary. You have one of the highest standards of care, responsibility, liability and unbiased fairness and good faith required by law.

Fourth, are the trust assets being invested, managed and recorded properly and prudently? You need to evaluate and manage the returns and the risks, in accord with the wording of the trust and your fiduciary duties. So, for example, the stock market goes up and down. If the market goes down, is your approach to the portfolio management designed to help you avoid liability for losses?

Next, do you have the proper fiduciary demeanor and decision making approach required of a trustee?

Sixth, is the trust cash flow prudently managed? You might, for example, through no fault of your own have a trust with declining asset values or liquidity issues.

Next, do you know what to do if you have beneficiaries who are disagreeing with your decisions, or who are threatening litigation?

Eighth do you know what information you must or possibly should provide to the beneficiaries?

Ninth, do you understand that you have personal liability exposure for the actions that you take or don’t take as the trustee? You are required to be prudent with risk management. Also consider possible fiduciary insurance coverage although in most situations it isn’t required.

And last on this list, when necessary do you consult with professionals to advise you on your fiduciary duties and trust administration management?

That’s it for now. You can find more information at http://californiaestatetrust.com Thanks for listening.

Admissibility of Hearsay Evidence of a Decedent’s Will or Trust

In will and trust contest actions the person who signed or who supposedly signed the will or trust is usually deceased.  Statements that the decedent previously made are considered hearsay, i.e., a statement made out of court that is being admitted for the truth of the statement, and are not admissible in evidence unless a hearsay exception applies. California Evidence Code section 1260 provides an important possible hearsay exception that may apply in will and trust contest cases; however, the applicability of section 1260 depends on a determination by the Judge in the case and applicability can vary from case to case and from Judge to Judge.

California Evidence Code section 1260 provides as follows:

Section 1260.  (a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

And, in an action involving a claim or demand against an estate of a decedent, California Evidence Code section 1261 also provides an additional possible hearsay exception in appropriate circumstances as determined by the Judge in the case.  Section 1261 provides as follows:

Section 1261.  (a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Dave Tate, Esq. (San Francisco / California)