Although information remains unknown in the Lisa Marie Presley trust case – indeed, it is very early in the case, the pleadings appear to still be unsettled, written discovery will be propounded, and depositions will be taken – in some cases an early mediation can be successful, or at least beneficial even if the mediation does not result in settlement at this point but requires multiple mediations.
As in most trust, estate and probate court cases there are multiple issues of fact, law, evidence admissibility, burdens of proof, and presumptions that could go one way or the other if the case proceeds to trial.
For example, it is reported in the news that one claim or allegation is that there was a requirement that the purported 2016 amendment to trust be served on the trustee(s) of the 2010 restated trust, and that that service was not done. It so happens that there have been a couple of new relatively recent California cases on this issue – i.e., what actions need to be taken for a purported amendment or modification to trust to be effective? It can be a complicated issue of law and fact based on the applicable statutes in the Probate Code, the trust wording (the wording in both the purported new amendment and in the prior existing trust instrument), case law decisions, factually what occurred and what did not occur, and the trier of fact (in this case, the Judge). And, if the case proceeds to evidentiary hearing/trial, there is always the prospect of a possible appeal.
As reported in the news, other claims or allegations might include questions about the signature and possible name misspelling. On the other hand, if the signature is authenticated and if the amendment is not otherwise invalid for some other reason, there is a rebuttable presumption that a person who signs a document understood and intended her actions and the provisions in the document (assuming, that is, that the document is clear, isn’t ambiguous, and covers all of the relevant issues that are involved in the factual situation). In California there is also a broad general rule that the wishes of a person who executes a testamentary instrument should be upheld; however, in some cases that general rule might merely beg the questions or issues in the case. Based on the news reports I can also imagine that there might be other possible additional issues that the news has not reported.
Mediation should be tried in all probate court cases, at least because of the significant uncertainties that exist, and sometimes multiple times in a particular case. In addition to issues of fact, law, etc., in most probate court cases relationships and personalities also are important and related to getting past impasse and to resolution.
You will know from this blog that I both litigate these cases and also serve as a mediator in other cases. Mediation is important to reach resolution or at least to reduce the issues or to speed discovery and ultimate resolution. I have attached below the current version of my Questions to Consider to Help Facilitate Dispute Resolution and Settlement.
Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.
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Best to you,
David Tate, Esq. (and inactive CPA)
- Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
- Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
- Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
- Mediator and facilitating dispute resolution:
- Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
- Business, breach of contract/commercial, owner, shareholder, investor, etc.
- D&O, board, audit and governance committee, accountant and CPA related.
- Other: workplace and employment, environmental, trade secret.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.
Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.
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My two blogs are:
http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com
Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com
David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.