Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume IV, Number 5  *  January 2009 
An E-Publication of the Los Angeles County Bar Association

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Visit the Trusts and Estates Section Web page.

IN THIS ISSUE:

Coming Events

Case Summaries

Practice Tips

 

Trusts & Estates Bulletin is published monthly by the Trusts & Estates Section, thanks to Co-Editors:
- David C. Nelson, Loeb & Loeb LLP, dnelson@loeb.com,
- Amy L. McEvoy, Sheppard Mullin, AMcEvoy@sheppardmullin.com
- Nelson J. Handy, Fiduciary Law Services, Inc., nelson@fidls.com

 

Coming Events
January 16, 2009: Trusts & Estates Symposium. How to Deal with Multi Generational Conflicts of Interest, New No Contest Legislation, and a Beneficiary’s Right to Information from Trustees
3 hours of CLE credit, 1 hour of ethics credit.


A Compendium of Recent Cases

Cases appear in chronological order, with the oldest case appearing first.


-Family Law-
Where property was acquired by wife in wife’s name only, property was presumptively wife’s separate property as a matter of law, but husband could rebut presumption by clear and convincing evidence of an agreement or understanding between spouses that property was to be held as community property or husband’s separate property. Fact that parties were married when wife acquired property had no bearing on whether spouses had an agreement or understanding regarding property. Presumption could not be overcome by tracing source of funds used to purchase property nor husband’s unilateral belief he owned property. Having a reason for allowing title to be taken solely in wife’s name did not diminish inference that parties intended property to be wife’s separate property.
     In re Marriage of Brooks and Robinson - filed December 16, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6705

    
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-Trusts and Estates-
Conservatorship proceedings are not criminal proceedings, so sua sponte duty to instruct on relevant issues of law which applies to jury trials in criminal cases does not apply. Where public guardian presented evidence that conservatee suffered from a mental illness and suffered delusional beliefs and auditory hallucinations, making medication necessary, and that conservatee often refused to take his medication, trial court order imposing conservatorship was proper. Trial court was not required to provide specific reasons for granting certain duties and powers to conservator and imposing disabilities upon conservatee on record.
     Conservatorship of George H. - filed December 16, 2008, Second District, Div. Five
     Cite as 2008 SOS 6759

    
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-Trusts and Estates-
Where testator attempted to devise residue of her estate to her sisters who predeceased her, California’s antilapse statute--which requires "issue of deceased transferee take in the transferee’s place" as provided by Probate Code Sec. 240, which requires residue to be "divided into as many equal shares as there are living members of the nearest generation of issue"--directed that intended devisees’ surviving adult children took by right of representation.
     Estate of Mooney - filed December 22, 2008, First District, Div. One
     Cite as 2008 SOS 6890

    
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-Trusts and Estates-
Trust beneficiary had standing to sue persons who allegedly participated in trustee’s breaches of fiduciary duty by inducing trustee to sell defendants trust property for less than fair market value, make risky and imprudent loans from the trust to a defendant and to businesses in which he had an interest, make risky and imprudent investments in businesses in which defendant had an interest, and give defendants trust property when they had no right to such property. Complaint for damages allegedly caused by defendants’ participation in breaches of duty by trustee of testamentary trust was not a probate matter but was related to pending probate petition, so whether to assign civil complaint to probate court was a matter to be resolved by local superior court rules. Replacement of allegedly breaching trustee by successor trustee does not deprive beneficiary of standing to sue persons who allegedly assisted breaching trustee.
     Estate of Bowles - filed December 22, 2008, Second District, Div. Five
     Cite as 2008 SOS 6911

    
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-Trusts and Estates-
A probate court may not, on principles of equity, disinherit a natural parent from distribution in child’s estate when child died intestate. Failure to pay child support or lack of a meaningful parent-child relationship does not affect parent’s rights as an intestate heir.
    Estate of Shellenbarger - filed December 29, 2008, Second District, Div. Six
     Cite as 2008 SOS 6957

    
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-Trusts and Estates-
Fact that trust instrument allowed trustees to designate additional beneficiaries did not preclude trial court from modifying irrevocable trust under Probate Code Sec. 15403, which permits such modification with consent of "all" beneficiaries. Modification of trust served a "material purpose" under Sec. 15403 by effectuating settlement among beneficiaries and assuring end to lengthy delay in distribution of trust assets.
    Boys and Girls Club of Petaluma v. Walsh - filed December 31, 2008,  First District, Div. Five
     Cite as 2008 SOS 111

    
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Trusts & Estates Practice Tips:

     Tip #1:
Visit www.courtinfo.ca.gov, click on Forms, and select "Recent Form Changes 1/1/2009" to determine which Judicial Council Forms have been updated recently.

     Tip #2:
The New Year is a great time to hone your organizational skills.
One simple step is to adopt a procedure for following up on hearings.
The attached Hearing Memorandum is a great way to plan follow-up actions after a hearing.

     Tip #3:
New Probate Code Sections 21310 et seq., taking effect on January 1, 2010, limit the application of a no contest clause to specific types of contests characterized as “direct contests” and provide that certain types of contests will only be covered if specifically enumerated in the no contest clause. In preparation for the new legislation, counsel should consider whether any revision should be made to his or her form trust document or will, or to existing trust documents or wills. Note that this topic will be discussed at the 2009 Trusts and Estates Symposium.


Los Angeles County Bar Association
2008-09 Trusts and Estates Section Newsletter
TRUSTS & ESTATES SECTION REVIEW
Amy L. McEvoy, Co-Editor,  David C. Nelson, Co-Editor,    Nelson J. Handy, Co-Editor

SECTION OFFICERS
Chair
Laura G. Conti

Vice-Chair
Jonathan L. Rosenbloom

Treasurer
Nelson J. Handy

Secretary
Nelson J. Handy

Immediate Past-Chair
David C. Nelson


Section Administrator
Elise Green

EXECUTIVE COMMITTEE MEMBERS

Michael A. Abraham
Susan J. Cooley
Tala R. Davis
Linda N. Deitch
Sibylle Grebe
Samuel D. Ingham III
Susan Jabkowski

Lawrence J. Kalfayan
Thomas H. Kenney
Jamie Lee Kim
Jane E. Kwon
Matthew W. Mc Murtrey
Amy L. McEvoy
Jacqueline Real-Salas
Leigh Shipp
Kira S. Vincze
Stuart D. Zimring


SUB-SECTION MEMBERS
Barristers Liaison, Laura Narimatsu Wasserman
Liaison Beverly Hills Bar Association, Trudi Sabel Schindler
Ex Officio, James R. Birnberg
Ex Officio, John M. Byrne
Ex Officio, Leslie A. Parrish
Ex Officio, Nancy B. Reimann

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.
 
The foregoing practice tips were prepared for information purposes only.  Such practice tips do not constitute tax, legal or other advice and no responsibility is assumed for any reliance upon them or with respect to assessing or advising the reader as to tax, legal, or other consequences arising from a particular situation. The accuracy of the information provided should be independently verified by the reader and should not be treated as authoritative.