Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume III, Number 11-2  *  July 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-
If the parties in a contested probate hearing do not object to the use of affidavits or declaration in evidence, and both parties adopt that means of supporting their positions, probate court may use the declarations to decide a motion. But where a party opposed the motion on the merits and asserted in written opposition and at the hearing on the motion that the factual conflicts in the parties’ competing declarations mandated an evidentiary hearing, probate court committed reversible error in failing to conduct such a hearing. Probate court has jurisdiction to determine the enforceability of a settlement and assignment of the rights to a decedent’s estate.
     Estate of Bennett - filed June 13, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 3527
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-Trusts and Estates-
"Safe harbor" petition filed pursuant to Probate Code Sec. 21320--which expressly allows a beneficiary to obtain an advance determination from the court of whether a particular motion, petition, or other act would constitute a contest within the terms of a no-contest clause--was not an action to contest the trust, and therefore was not subject to the statute of limitations set forth in Sec. 16061.8 for actions to contest a trust; the issue of whether the proposed petition was barred by the statute of limitations was not ripe for adjudication since that petition had not yet been filed. Trust's no-contest clause was not violated by minor's claims, brought through a guardian ad litem, because minor could not voluntarily participate in a trust contest; minor's written consent to the appointment of mother as guardian ad litem did not constitute voluntary participation in the trust contest within the meaning of the no contest clause because minor's signature does not change the fact that minor was legally incapable of pursuing a contest.
     Safai v. Safai - filed June 25, 2008, Sixth District
     Cite as 2008 SOS 3695

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-Trusts and Estates-
Beneficiary was collaterally estopped from arguing that certain trust and testamentary instruments resulted from fraud or undue influence where the issues of fraud and undue influence were necessarily adjudicated and decided in a prior substituted judgment where probate court found trustor had requested and was not opposed to creating the living trust and pour-over will, those actions had no effect on trustor’s estate, were in the best interest of trustor and trustor’s estate, and a reasonably prudent person in trustor’s position would have executed those trust and testamentary instruments.
     Murphy v. Murphy - filed June 26, 2008, First District, Div. Five
     Cite as 2008 SOS 3860
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-Trusts and Estates-
Trustee’s petition to settle an account under Probate Code Sec. 17200(b)(5) invoked probate court’s inherent equity power to suspend some of trustee’s powers as trustee for perceived breaches of trust pending a full hearing; thus, probate court had jurisdiction to issue orders suspending some of trustee’s powers, appointing separate "interim trustee," and ordering trustee to turn over all trust documents and books to interim trustee, even in the absence of a petition for trustee’s removal. Where trustee had received verified objections and supplemental objections from three parties containing requests to suspend trustee’s powers and alleging breaches of duty, trustee had notice of the effort to suspend trustee’s powers sufficient to satisfy due process. Predecessor trustee had no right to refuse to turn over original trust administration documents to successor trustee and may not assert attorney-client privilege as to documents reflecting confidential communications regarding trust administration matters to the extent he was acting in official capacity as trustee.
     Schwartz v. Lawson - filed June 26, 2008, Second District, Div. Three
     Cite as 2008 SOS 3854
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-Civil Procedure -
The attorney fee provision of the Elder Abuse Act contains no mention of trustees and therefore does not authorize the award of trustee fees as costs. The act invokes application of Code of Civil Procedure Sec. 1032 costs and, by reference, the cost list in Sec.1033.5, but neither provide authority for an award of trustee fees as costs.
     Sanders v. Lawson - filed June 27, 2008, Second District, Div. Three
     Cite as 2008 SOS 3806
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