Trusts & Estates Bulletin

A Compendium of Recent Cases

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


Trusts & Estates Bulletin is published monthly by the Trusts & Estates Section, Co-Editors:
- David C. Nelson, Loeb & Loeb LLP,,
- Amy L. McEvoy, Sheppard Mullin,
- Nelson J. Handy, Fiduciary Law Services, Inc.,



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

A Compendium of Recent Cases

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

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
Amy L. McEvoy, Co-Editor,  David C. Nelson, Co-Editor,    Nelson J. Handy, Co-Editor

Jonathan L. Rosenbloom

Nelson J. Handy

Stuart D. Zimring

Stuart D. Zimring

Immediate Past-Chair
Laura Conti

Section Administrator
Elise Green


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

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

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.