No Contest Clause Enforcement Determined Under Current Law

  The California Supreme Court concludes in Donkin v. Donkin that safe harbor proceedings filed before 2010 are not affected by the repeal of former Probate Code section 21320, which previously authorized safe harbor applications. With respect to substantive questions as to whether a claim triggers a no contest clause, pursuant to Probate Code section 21315, current law is applicable to all instruments which became irrevocable on or after January 1, 2001. Continue reading

Laches Bars Probate Petition; Filing, Not Service, Determines Timeliness of Petition

  Laches is an equitable defense which may be asserted when unreasonable delay in bringing a cause of action results in prejudice. While the statute of limitations specifies the outside time limit within which a cause of action must be brought, laches considers the totality of circumstances surrounding delay, and any resulting prejudice, to deny a remedy when a claimant has “slept on his rights.” Continue reading

Suit Against Estate On Contract to Make Will Timely Pursuant to 1-Year Statute of Limitations

  In a case of first impression the court in Allen v. Stoddard was confronted with the circumstance where plaintiff’s suit — based upon an alleged contract to make a will against the executor of an estate — was filed 91 days after rejection by the estate of his creditor’s claim but within a year of the decedent’s death.

  Probate Code sections 9350 to 9354 govern claims against decedents’ estates and section 9353 unambiguously states that regardless of any other statute of limitations, any claimant against an estate has only 90 days after notice of rejection of the claim by the estate to file suit. If section 9353 governs plaintiff’s claim is time-barred.

  However, Code of Civil Procedure section 366.3 specifically gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent’s death to file suit. Was plaintiff’s suit, therefore, timely? The court held that it was. Continue reading

Beneficiaries Have Standing to Sue Trustee of Revocable Trust After Settlor’s Death

  The California Supreme Court reverses the Court of Appeals and holds in Estate of Giraldin in a 4-2 opinion that where the trustee of a revocable trust is other than the settlor, the beneficiaries of a revocable trust have standing to sue the trustee for breach of fiduciary duty committed while the settlor was alive and the trust was still revocable, after the settlor dies.

  In dissent Justice Kennard, with Justice Werdergar concurring, would have upheld the opinion of the Court of Appeals on the theory that the Probate Code only authorizes the decedent’s personal representative to sue on behalf of the beneficiaries in such circumstances; not the beneficiaries individually.

Self-Represented? Do Not Prosecute That Appeal Without Counsel

  Unpublished opinions are a wonderful source of well-settled law and the legal principals upon which it is based. One such recent case is Estate of Hickey. Hickey involved the frivolous appeal of various probate court orders by a self-represented non-attorney. If you are self-represented and are considering an appeal of an order or judgment which you intent to prosecute yourself  – the opinion is suggested required reading. Hopefully your eyes will be opened to the difficulties and danger you face as an untrained and unskilled appellant. You will decide, instead, to retain qualified counsel — to help you decide whether an appeal is in your best interests and, if so, to draft your opening brief.

Written Fee Agreement Not Required to Recover Statutory Probate Fees

   California law generally provides with respect to hourly and flat fee agreements, except in an emergency or when the client is a corporation, that when it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed $1,000, the contract for services in the case shall be in writing. In the event there is no written contract when one is required, or the agreement fails to comply in some other respect with Business and Professions Code section 6148, the agreement is voidable at the client’s option. If the agreement is voided by a client, the attorney is nonetheless entitled to a reasonable fee. Continue reading

Esoteric Rulings re Mechanics Liens and Inheritance Rights

   There were two cases decided today which are relevant and important to my areas of practice. They are esoteric for a blog post which is not directed to experts. Nonetheless, one holding is important to my clients who are contractors. The other for my clients whose inheritance in uncertain due to a change in the Probate code between the making of a Will and the death of the decedent who takes under a power of appointment. Continue reading

4th Appellate District Recognizes New Tort: Intentional Interference with an Expected Inheritance

   In Beckwith v. Dahl, filed May 3, 2012, a panel of the Fourth Appellate District overruled the lower court which had sustained a demurrer to Beckwith’s cause of action for Intentional Interference with an Expected Inheritance (“IIEI”). In recognizing the tort for the first time in California, the court held that plaintiff must allege:

  1. That plaintiff had an expectancy of inheritance;
  2. There must be proof to a reasonable degree of certainty that, but for the actions of the defendant, the plaintiff would have received an inheritance;
  3. Defendant had knowledge of the plaintiff’s inheritance and took actions to interfere with it;
  4. The interference was by independent tortious means, i.e, the underlying interference must be wrong for a reason other than for the interference itself;
  5. Plaintiff suffered damage.

   The decision creates a high bar for plaintiffs. However, it creates a remedy previously unavailable and should be welcomed. Wrongful interference with an expected inheritance no longer will have the law as a shield.

  I consult with clients and accept cases involving probate matters and contracts to make a will, including cases involving Intentional Interference with an Expected Inheritance. For other types of cases I accept, please scroll my “Home” and “My Practice” pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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