Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume IV, Number 8  *  April 2009 
An E-Publication of the Los Angeles County Bar Association

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IN THIS ISSUE:


Case Summaries

 

Trusts & Estates Bulletin is published monthly by the Trusts & Estates Section, 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

 


A Compendium of Recent Cases

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


-Trusts and Estates-
California Department of Health Care Services’ claim for Medi-Cal expenses paid on behalf of decedent were not governed by general Probate Code provisions for creditor’s claims but by specific provisions for creditor’s claims by public entities.
      Shewry v. Wooten - filed February 27, 2009, publication ordered March 24, 2009, First District, Div. Three
     Cite as 2009 SOS 1831

    
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-Trusts and Estates-
Beneficiary’s contention that ambiguous language in trust documents was result of scrivener’s error and should therefore be reformed in accordance with grantors’ intent did not violate trusts’ no-contest clauses. Trial court could excuse compliance with trust provision--providing for a conclusive presumption that survivor did not exercise her limited power of appointment over specified property if survivor’s will or codicil was not filed within 60 days of her death--if survivor exercised her limited power of appointment in a way that approximated the manner prescribed by trust documents and that did not defeat a significant purpose of trustors.
      Giammarrusco v. Simon - filed March 12, 2009, Second District, Div. One
     Cite as 2009 SOS 1516
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-Torts-
Testator’s lawyer owes no duty of care to a nonclient who alleges he or she was a potential beneficiary of the testator’s estate in the absence of an executed will or trust instrument expressly reflecting the testator’s intent. Testator’s lawyer owes no duty of care to a nonclient who was previously named in a will or trust instrument executed by testator and who alleges testator intended to revise his or her estate plan to increase the gift to the beneficiary.
     Chang v. Lederman - filed March 16, 2009, Second District, Div. Seven
     Cite as 2009 SOS 1601
    
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-Family Law-
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child’s best interest--is not facially unconstitutional because a showing of current unfitness is not always necessary when a court terminates parental rights after parent-child family unit has ceased to exist and parent’s entitlement to custody is not at issue; when child develops an interest in a stable, continuing placement, and guardian acquires a recognized interest in the care and custody of child; and when statute requires trial court to balance all familial interests in deciding what is best for child. Trial courts have discretion to determine on a case-by-case basis whether to apply Sec. 1516.5 to a guardianship in existence on its effective date. Where mother had not sought visitation during more than three and a half years of probate guardianship and did not see child for an even longer period, reunification was a remote possibility, and retroactive application of Sec.1516.5 was consistent with due process.
     Guardianship of Ann S. - filed March 19, 2009
     Cite as as 2009 SOS 1653

    
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-Family Law-
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child’s best interest--is not facially unconstitutional by adopting the best interests of a child as standard for terminating parental rights. Court of appeal erred in barring termination of father’s parental rights without a finding of unfitness if father could demonstrate a commitment to parental responsibility where father was qualified to assert his rights as a presumed father but expressly waived those rights when child was placed in guardianship.
     In re Charlotte D. - filed March 19, 2009
     Cite as as 2009 SOS 1662

    
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-Family Law-
The pre-retirement death of a pension plan participant ordinarily irrevocably vests the right to survivor benefits in the existing spouse, but a domestic relations order possessed by a former spouse before the plan participant’s death may be qualified postmortem as a "qualified domestic relations order" under the Employee Retirement Income Security Act of 1974 where it substantially complies with ERISA’s specificity requirements. When a pension plan participant dies or retires before a former spouse secures an order awarding that spouse any interest in the plan, a domestic relations order entered before the death that does not award the former spouse an interest in the participant’s pension plan, but simply "reserves jurisdiction" over the plan, provides an inadequate basis for entry nunc pro tunc of either a QDRO under ERISA or of an order determining the former spouse’s interest that later may be qualified as a QDRO.
     In re Marriage of Padgett - filed March 25, 2009, First District, Div. Two
     Cite as as 2009 SOS 1857

    
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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

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