Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume V, Number 8  *  April 2010 
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

 

 


Coming Events

May 8, 2010: Mandatory/Refresher Probate Volunteer Panel Attorney Training Program. Earn 4.25 hours for certified specialists in estate planning, trust and probate law.



May 25, 2010: Litigation Considerations When Representing Fiduciaries. Omni Los Angeles Hotel. Earn 1.5 hours of CLE credit.



Special Announcement

Harriett Buhai Center for Family Law: 25th Annual Theater Benefit, Thursday, June 3, 2010. The Harriett Buhai Center for Family Law will honor Superior Court Judge Mitchell L. Beckloff, Presiding Probate Judge for Los Angeles County, at its 25th Annual Theater Benefit.

This will be a terrific celebration of a man who richly deserves this prestigious honor. For your contribution, you will receive tickets to a performance at the Music Center in Los Angeles of Rodgers & Hammerstein's South Pacific, followed by a reception and award ceremony.

Last, but by no means least, your support will help a truly wonderful organization that takes on the very serious problems of domestic violence and poverty among single parents and their children. The Harriett Buhai Center provides diverse and unique programs, such as pro bono legal services, the Child Support Project, the Domestic Violence Law Project, the Vulnerable Youth Project, Mothers Behind Bars and other community education, outreach, and volunteer programs. You can learn more about the center at www.hbcfl.org


A Compendium of Recent Cases

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

Bankruptcy
Where debtor in bankruptcy filed in California brought a compulsory state law counterclaim against the son of her late husband for tortious interference with an inter vivos gift--in response to son’s nondischargeability complaint and proof of claim, and bankruptcy court found son liable in tort--but probate court in Texas administering estate subsequently upheld the validity of the estate documents, finding no undue influence or coercion and that husband did not intend to give debtor assets that passed through his will or that were held in his living trust, the district court--exercising appellate jurisdiction--should have afforded preclusive effect to the Texas court’s factual findings and relevant legal conclusions. Bankruptcy court, which is empowered by 28 U.S.C. Sec. 157(b)(1) to hear and finally determine "core proceedings arising under title 11" or in a "case under title 11," exceeded its statutory grant of power and constitutional limitations when it purported to enter a final judgment in favor of debtor rather than proposed findings of fact and conclusions of law, because counterclaim was not a "core proceeding" where its resolution was not a necessary precursor to the resolution of son’s defamation claim against the bankruptcy estate.
     In re Marshall - filed March 19, 2010
     Cite as 02-56002
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Trusts and Estates
An appeal lies from an order refusing to authorize or allow "payment of compensation or expenses of an attorney." Because a trustee's duty to account was inseparable from his duty to carry out the terms of trust by distributing remaining trust assets, a "contest of the trustee's account" as used in Probate Code Sec. 17211(b), included beneficiaries' petition for distribution.
     Leader v. Cords - filed March 23, 2010, Fourth District, Div. One
     Cite as D055202
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Trusts and Estates
Proper counseling about the nature and consequences of a bequest to a disqualified person requires an independent attorney to ensure that testator understands the nature of the property bequeathed, that a disqualified person will receive property, and that the "natural objects" of testator’s bounty, if any, will not receive property. Testator does not need to know about the existence of Probate Code Sec. 21351 or understand its workings to understand the nature of a bequest. Although Sec. 21351(b) does not specifically require it, statute requires the counseling to occur under circumstances that would insulate transferor from any improper influences giving rise to a donative transfer and encourage transferor to speak frankly with certifying attorney about those influences, if any. At a minimum, any disqualified person and any person associated with a disqualified person must be absent, and burden is on a disqualified person to demonstrate counseling session’s confidentiality by showing that presence of additional persons either was necessary to accomplish the counseling session or did not interfere with transferor’s full and honest disclosure to the independent attorney. An attorney is "independent" for purposes of Sec. 21351 if that attorney’s personal circumstances do not prevent him or her from forming a disinterested judgment about the validity of a bequest.
     Estate of Winans - filed March 25, 2010, First District, Div. One
     Cite as 2010 SOS 1603
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Los Angeles County Bar Association
2009-10 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
Jonathan L. Rosenbloom

Vice-Chair
Nelson J. Handy

Treasurer
Stuart D. Zimring

Secretary
Stuart D. Zimring

Immediate Past-Chair
Laura Conti

Section Administrator
Elise Green

EXECUTIVE COMMITTEE MEMBERS

Michael A. Abraham
Jackson Chen
Susan J. Cooley
Kenneth A. Feinfield
Sibylle Grebe
Samuel D. Ingham III
Susan Jabkowski
Jane E. Kwon
Jamie Lee Kim

Kira S. Masteller
Amy L. McEvoy
Matthew W. Mc Murtrey
Nicole M. Pearl
Jacqueline Real-Salas
David P. Schwartz
Leigh A. Shipp
Gabrielle A. Vidal


SUB-SECTION MEMBERS
Barristers Liaison, Laura Narimatsu Wasserman
Liaison Beverly Hills Bar Association, Trudi Sabel Schindler
Liaison Public Interest, Yolande P. Erickson
Ex Officio, James R. Birnberg
Ex Officio, Thomas H. Kenney
Ex Officio, Gary M. Ruttenberg

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