California Appellate Lawyer Blog

Dissents appear in published opinions of the California Court of Appeal, Fifth Appellate District about as frequently as meteors crash to Earth. King v. Lynch (filed April 10. 2012) 2012 DJDAR 4516) is such a cosmic event. The court majority affirmed the trial court's invalidating amendments to a trust, even though those amendments comply with the revocation method established in Probate Code section 15401, subdivision (a) (2). The majority found the trust specified a modification method, and thus, under section 15402 the trust could only be amended in that manner.

The trust in question provided that, during the joint life of the two settlors, who were also the initial trustees, the trust "may be amended" by a writing signed by both settlors and delivered to the trustee. Nowhere does the instrument explicitly state this is the exclusive method of amendment.

After one of the settlors, Edna, suffered a severe brain injury, leaving her incompetent, an amendment to the trust was executed by her co-settlor, Zoel. That amendment stated that because Edna could no longer serve, Zoel was appointed as sole trustee. Two further amendments were executed by Zoel changing monetary bequests to the settlors' beneficiaries. These three amendments are the subject of the challenge in this case. The trial court found all three of these amendments invalid, and was affirmed on appeal.

Continue reading "Amendments to revocable trust must follow procedure specified in trust instrument to exclusion of statutory method" »

Wills, Trusts & Estates Prof Blog (December 30, 2010) quotes Voltaire concerning the advantages animals have over humans; one advantage is "no one starts lawsuits over wills."

In Estate of Bartsch ( filed March 22, 2011) 2011DJDAR 4140, Norman Bartsch Herterich claimed he was the decedent's only son and sole heir to the entire estate in spite of a will that listed no children, failed to list him as a beneficiary and had a disinheritance/no contest provision. San Francisco Superior Court's probate court approved an interim award of attorney fees and costs incurred by executor Arndt Peltner, who also was a 14 percent beneficiary under the will admitted to probate, over Herterichs objection. The Court of Appeal, First Appellate District, Division One, affirmed.

Herterich contends on appeal the award of attorney fees was improper under Probate Code section 11704 because Peltner is both an executor and an heir, making him not impartial. He claims paragraph (b) allows the personal representative to act "as a party to assist the court," which precludes defending against a probate contest especially where that asserted executor has a beneficiary stake. He views this statutory language as a statement limiting Peltner's participation because to say otherwise would make the language surplusage.

Continue reading "Interested Beneficiary May Act As Personal Representative of Estate in Will Contest Under California Probate Code" »