Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume III, Number 10  *  April 2008 
An E-Publication of the Los Angeles County Bar Association  *  Contact Us  *  Join the T & E Section  *  Archived Issues


Trusts & Estates Bulletin is published monthly by the Trusts & Estates Section of the Los Angeles County Bar Association (LACBA).

David C. Nelson,
Loeb & Loeb LLP, Editor


(Cases appear in chronological order, with the oldest cases appearing first.)

-Trusts and Estates-
Trustor of an irrevocable trust has standing to petition to reform the trust when he claims a drafting error has interfered with the execution of his dispositive  intent.
     Bilafer v. Bilafer - filed  March 26, 2008, First District, Div. Five
     Cite as 2008 SOS 1840
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Legislature’s enactment of Government Code Secs. 26827 and 68087--which impose a filing fee on decedents’ estates based on estates’ appraised value--violate Proposition 6--which repealed inheritance and gift  taxes and prohibited their reenactment under a different name without voters’ approval--as well as Article II, Sec. 10(c) of California Constitution--which  provides that legislature may only amend or repeal an initiative statute by voters’ approval unless initiative provided otherwise--because statutes constituted an amendment of Revenue and Taxation Code Sec.13301’s prohibition on estate taxes and operated as an ad valorem tax.
     Estate of Claeyssens - filed  March 27, 2008, Second District, Div. Six
     Cite as 2008 SOS 1832
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-Trusts and Estates-
Where court entered order dissolving husband and wife’s marriage and terminating marital property rights  effective three months later, and husband died prior to effective date while parties were attempting to reconcile, trial court did not err in holding that  wife was not husband’s surviving spouse within meaning of Probate Code Sec. 78(d) and that she had no right to share in his estate.
     Estate of McDaniel - filed  March 27, 2008, Third District
     Cite as 2008  SOS 1843

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-Civil Procedure-
Clerk’s default lacked preclusive effect in subsequent proceeding, both because it was not a judgment and because it was void, having been entered against a nominal party against whom no relief was sought. Order that claimant take nothing from estate lacked preclusive effect where based solely on stipulation by other parties. Time limit for seeking relief from default under Code of Civil Procedure Sec. 473 does not apply to a motion to set aside a void order or judgment. Code of Civil Procedure Sec. 366.2, setting a one-year limitations period for survivorship actions, does not apply to a claim that only comes into existence upon the decedent’s death. Where claimant and her stepsister were beneficiaries of trust, and stepsister brought an action within one year of trustor’s death to enforce an alleged promise by trustor to distribute the trust among certain persons including stepsister and claimant, and claimant was named as a defendant in the action, claimant was a nominal defendant and was really a co-plaintiff, so her claim was timely under Code of Civil Procedure Sec. 366.3--establishing a one-year limitations period for such actions--even though claimant did not file any pleading of her own within the one-year period.
     Ferraro v. Camarlinghi - filed March 27, 2008, Sixth District
     Cite as 2008 SOS 1845
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