Probate and Elder Abuse Litigation

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BrendanBIn most California civil cases, a party generally must wait until a trial court issues a final judgment before he or she can get through the doors of the Court of Appeal.  While there are a few exceptions, this rule (sometimes called the one-final-judgment rule) prevents litigants from complaining to the appellate court about every ruling in a given case in piecemeal fashion.  Even when they receive an appealable judgment, parties to an appeal often find that getting a decision from the reviewing court takes endurance and patience; e.g., the time from the notice of appeal to the decision frequently takes over a year.

Things work a bit differently in probate court.  In that forum, parties can appeal from a multitude of rulings that a trial court may issue well before any final judgment.  And litigants who feel like they are growing old dealing with other types of appeals may find less waiting when it comes to probate appeals.  That is because probate appeals are subject to statutory preference (i.e., hurry-up-and-get-it-over-with rules) under section 44 of the California Code of Civil Procedure.  Still, it is a good idea to file an application for calendar preference (to remind the appellate court that yours is one of those cases) in order to speed things along.Continue Reading Don’t Make the Grave Mistake of Killing Your Appeal from an Order of the Probate Court

EdCTrust beneficiaries and litigators beware: the recent case of Drake V. Pinkham ((2013) 217 Cal.App.4th 400) highlights the dangers of waiting to file a trust contest until after the settlor’s death when questions regarding the settlor’s competency arise during the settlor’s lifetime.

Typically, revocable trusts are just that – revocable. A settlor can modify or terminate his or her revocable trust up until death, presuming that he or she retains the capacity to do so. Because a competent settlor has the legal right to change his or her revocable trust up until death, a beneficiary does not usually have the right to contest the revocable trust during the settlor’s lifetime.

The limitation on a beneficiary’s ability to contest a revocable trust during the settlor’s lifetime is contained in Probate Code section 15800. Section 15800 specifically provides that the person holding the power to revoke a trust (e.g. the settlor), and not the beneficiaries, holds the rights under the trust during the time the trust is revocable and the settlor is competent.

But if Probate Code section 15800 prevents a beneficiary from contesting a revocable trust when the settlor is competent, does that mean that a settlor must be formally deemed incompetent before a beneficiary can bring a contest during a settlor’s lifetime? And what happens if a beneficiary, believing a settlor to be incompetent, waits until after the settlor’s death to bring a contest – will that contest fail as untimely?

Continue Reading In Trust Disputes Where Competency of the Settlor is an Issue, Waiting Until After the Settlor’s Death to File A Trust Contest Can be Fatal

KellyDIn Conservatorship of Gregory D., (“Gregory D.”), the Court of Appeal considered whether the mother of a conservatee had standing to appeal an order that, among other things, set a visitation schedule for her son, an adult conservatee.  The Court of Appeal determined that the mother did not have standing to appeal, as she had not identified any of her own rights or interests that were injuriously affected by the order.

The Conservatorship:

Gregory D. (“Gregory”) is a developmentally disabled adult in his mid-twenties. Gregory reached the age of 18 in 2005; and, he moved into his own apartment in 2008, with supportive services that enable him to live independently.  In 2004, Gregory’s parents, Linda and Joseph, who were divorced, filed competing petitions to be named as Gregory’s limited conservator.  In 2005, Linda and Joseph settled the dispute and agreed that Linda would become Gregory’s limited conservator.  As limited conservator, Linda was granted various powers, including the ability to fix Gregory’s place of residence, access to Gregory’s confidential records and papers, and the power to enter into contracts on Gregory’s behalf.

A Series of Conservators:

While Linda was serving as limited conservator, further litigation ensued between Joseph and Linda pertaining to Linda’s administration of the conservatorship.  Joseph filed a petition to remove Linda as Gregory’s conservator, contending that Linda had improperly relocated Gregory from half-time residence in Joseph’s home and had prohibited contact between Joseph’s family and Gregory.  In August 2008, the court appointed a Probate Volunteer Panel attorney, Paul Gaulke (“Gaulke”), as attorney for Gregory.

In July of 2009, after Joseph and Linda entered into another settlement agreement, the court entered an order providing, among other things, that Linda would resign as limited conservator immediately upon the appointment of a successor limited conservator.  In September 2009, the court appointed Linda Cotterman (“Cotterman”) as the successor limited conservator for Gregory.Continue Reading Mother Lacked Standing to Appeal Probate Court’s Order Relating to Her Son’s Rights

KellyDSince my practice primarily involves disputes, I am often asked to assist clients with the issues that arise when one of their loved ones becomes incapacitated and can no longer make financial or health care decisions for himself or herself.  In a perfect world, the loved one has a foundational estate plan that includes a durable financial power of attorney and an advance health care directive that name an agent (also called an attorney-in-fact) who can step in and make financial and health care decisions when the loved one is no longer able to make those decisions for himself or herself.  In these “perfect world” scenarios, once a determination of incapacity is made, it is relatively easy for the agent to step in and begin managing his or her loved one’s financial affairs and medical decisions and needs.  But what happens if the loved one does not have a foundational estate plan, or if he or she is in need of more protection than a durable financial power of attorney or advance health care directive can provide?  In those difficult situations, court intervention is often required.

If your loved one becomes incapacitated and does not have a durable financial power of attorney (and “durable” is the key word here:  a financial power of attorney is only “durable” if it specifically states that it remains in effect even in the event of incapacity), it may be necessary for you to seek the appointment of a conservator so that there is a person who has the authority to manage your loved one’s financial affairs.  This is also true if your loved one does not have an advance health care directive or durable power of attorney for health care that appoints an agent to make health care decisions for him or her in the event of his or her incapacity:  in that event, it may be necessary for you to seek the appointment of a conservator so that there is a person with authority to make health care decisions for your loved one.Continue Reading My Loved One is Incapacitated. Now what?

EdCThe recent case of  Allen v. Stoddard (2012) 212 Cal.App.4th 807 has highlighted at least one pitfall regarding filing a claim against an estate. The Allen court has pointed out that Probate Code section 9353 (“Section 9353”), which imposes a deadline of 90 days in which to file a lawsuit against an estate on a rejected creditor’s claim, and Code of Civil Procedure section 366.3 (“Section 366.3”), which imposes a deadline of one year to enforce a claim against a decedent for breach of a promise or agreement relating to a distribution from an estate or trust, have conflicting requirements as to a claimant’s time to file a lawsuit regarding claims for breach of a promise to make a will.
Continue Reading Court Clears Up Confusion Regarding the Limitations Period to File A Lawsuit Based On A Promise To Make A Will