Trusts and Estates Section of the California Lawyers Association

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Conservatorship of Navarrete The court lacks authority to require a conservatee to receive a visitor against her will and over the objection of the conservator. Anna Navarrete, a 33-year-old woman with cerebral palsy, a developmental speech and language disorder, and an anxiety adjustment order, was the subject of competing conservatorship petitions filed by her mother one hand, and her father and older brother on the other hand. At trial, Navarrete’s therapist, mother, and ...younger brother testified that Navarrete told them that her father sexually assaulted and raped her, and that she fears her father. The father testified and denied the accusations. The court granted mother’s petition to be appointed Navarrete’s conservator, but granted father monitored visitation. Despite acknowledging Navarrete’s genuine fear for her father, the court concluded it would be in Navarrete’s best interests to have joint counseling sessions with her father to allow reconciliation in the event that the accusations of sexual assault and rape were not true. Navarrete, her conservator, her attorney, and her therapist had objected to visitation, and appealed. Click here for more information: https://calawyers.org/trusts/conservatorship-of-navarrete/

Go through rules and scenarios for trusts and estates litigation in relation to the 4th Edition of the popular Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel in our 1/13 webinar. Learn more:

Gomez v. Smith The causation element of an intentional interference with expected inheritance claim does not shift the burden of proving capacity to the plaintiff. Frank Gomez and plaintiff Louise Gomez married in 2014, 60 years after Frank broke off an engagement to Louise to serve in the Korean War. Tammy Smith and Richard Gomez, two of Frank’s children from a prior marriage, did not approve of Frank’s relationship with Louise. In 2016, Frank fell ill and attempted to esta...blish a new living trust with the intent to provide for Louise during her life. Click here for more information: https://calawyers.org/trusts-and-estates/gomez-v-smith/

Greetings following our first virtual Annual Meeting of the California Lawyers Association! Although the meeting was a success, we all hope to have future Annual Meetings in person following the Covid pandemic. In the meantime, as TEXCOM’s new Chair, I would like to share with you some new products that TEXCOM will be providing to its members this upcoming year. In the past, many of our webinars have been only audio. Recognizing that this form of media makes it difficult... for the speaker to hold an audience’s attention, TEXCOM requested more interactive media. CLA now allows us the use of Go to Meeting where we have visuals of speakers and panelists and other options. CLA is piloting other programs for multi-day seminars, which may be available soon. TEXCOM hopes to pilot podcasts this upcoming year. In addition to having interviews on topics of interest, TEXCOM hopes to have professionals read Quarterly Articles for MCLE credit. We hope that many of you have taken advantage of the self-study MCLE credit you can earn by reading a Quarterly article and taking the short on-line test. A new edition of TEXCOM’s Ethics Guide is in publication and will be available to members before the end of this year. This updated edition strives to assist trust and estate practitioners in navigating the recent changes to the Rules of Professional Conduct. The Guide contains a discussion of the Rule, the practical effect of its ethical requirements, commentary from the Supreme Court, commentary on related Model Rules by ACTEC and the ABA, interpretive case law, and ethics opinions. Finally, TEXCOM will continue to deliver its quality publication, The Quarterly to its members, but we anticipate that there may be a new look to the popular publication in the future! Ellen McKissock Hopkins & Carley San Jose, California

Buskirk v. Buskirk California courts have case-linked personal jurisdiction over out-of-state trustees and beneficiaries who have purposefully availed themselves of forum benefits, where the controversy relates to the respondents’ contacts with the forum, and where the exercise of jurisdiction comports with fair play and substantial justice. Ellen and her husband created a trust in 2005 while they were both California residents. They named themselves co-trustees and chose to ...have the trust governed by California law. Following her husband’s death in 2005, Ellen administered the trust as sole trustee until 2016 when she moved to Idaho where her daughters lived. Ellen was the lifetime beneficiary and her son, two daughters, and granddaughter were the remainder beneficiaries. Ellen’s son, Walter, contended his mother was taken to Idaho against her will by Ellen’s two daughters and brother and that she was being isolated and subjected to undue influence. After learning of the sale of some of the trust’s California real estate on terms to which he objected, Walter filed a petition seeking a trust accounting and appointment of a professional fiduciary as successor trustee. Ellen and her daughters moved to quash the petition based on lack of personal jurisdiction. The probate court granted the motion, ruling that Walter failed to establish the respondents’ minimum contacts with California. Walter appealed. Click here for more information: https://calawyers.org/trusts-and-estates/buskirk-v-buskirk/

Rallo v. O’Brian A general disinheritance clause suffices to express a decedent’s intent to disinherit potential heirs living at the time of execution of a will or trust, even if unknown to the decedent. Hugh O’Brian established a trust to benefit his surviving spouse, named friends and family members, and a charity following his death. O’Brian did not provide for two of his biological children, Kimberly Rallo and Adam Ross, and stated in the trust that he had no childr...en. Following O’Brian’s death, Rallo and Ross sought an intestate share of the estate on the basis that O’Brian omitted them solely because he was unaware of their birth. The trust contained a general disinheritance clause indicating that O’Brian intentionally and with full knowledge omitted any of [his] heirs who may be living at the date of [his] death, or any person who claims to be a descendant or heir of mine’ The trustee demurred to Rallo’s and Ross’s petitions on the ground that they failed to state a claim for relief. The trial court sustained the demurrers without leave to amend. Rallo and Ross appealed. Held: Affirmed. Omitted children born before execution of a testamentary document have a statutory right of recovery of an intestate share of the decedent’s estate if the sole reason for the omission was because the decedent believed the child to be dead or was unaware of their birth. The burden of proof is on the omitted child. Ross and Adams argued that a general disinheritance clause cannot establish a decedent’s intention to omit children already living at the time of execution. However, nothing in the statute prevents the use of a general disinheritance clause to express intent to disinherit potential heirs living at the time, even if unknown to the trustor. As to children whose birth the decedent is unaware of, the burden is on the omitted child to plead and prove facts demonstrating that the sole reason for the omission was the decedent’s unawareness of their births. Click here for more information: https://calawyers.org/trusts-and-estates/rallo-v-obria/

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Conservatorship of O.B Where a trial court decision must be supported by clear and convincing evidence, on appeal the standard of review must reflect that heightened burden of proof. O.B. had autism spectrum disorder. Her mother petitioned for a limited conservatorship. At trial, O.B. relied on the expert testimony of Dr. Khoie, who opined that O.B. was not a candidate for a conservatorship and had the potential to live independently with support, and on the testimony of Mr. ...Donati, the probate investigator who opined that he did not think the conservatorship would benefit O.B. In support of the petition O.B.’s mother testified that O.B. needed significant assistance with daily tasks, could not care for herself, and was susceptible to undue influence by others. Two doctors also opined that a limited conservatorship was proper and that O.B. lacked capacity. The trial court found that, as required, clear and convincing evidence supported the imposition of the conservatorship, and granted the petition. The Court of Appeal, Second District, applying the substantial evidence standard of review, affirmed, stating that the testimony of one witness can constitute substantial evidence, and that the mother’s testimony alone was substantial evidence confirming the appellant’s inability to perform critical tasks. The Court of Appeal stated that the clear and convincing burden of proof is only for trial court use, and that it disappears on appeal. The Supreme Court reversed. The clear and convincing burden, as opposed to the mere preponderance of the evidence burden, applies at the trial court level where particularly important individual rights or interests are at stake. On review, however, the Courts of Appeal are split as to whether the substantial evidence standard of appellate review applies to an evidentiary burden requiring clear and convincing evidence. If the substantial evidence standard of review applies it compromises the reviewing court’s ability to correct error, because the distinction between the preponderance of the evidence burden and the clear and convincing evidence burden is lost. Henceforth, the standard applied on review to the sufficiency of the evidence supporting a finding requiring clear and convincing evidence should be whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by the clear and convincing standard of proof. Click here for more information: https://calawyers.org/trusts-and/conservatorship-of-o-b-2/

Discover the practical and ethical considerations that may impact a healthcare provider or an organization’s participation in the End of Life Option Act (EoLOA), the process, and how you can advise your clients with respect to the EoLOA. Join us for our upcoming webinar on 8/18. Register here:

The End of Life Option Act (EoLOA) became law in California in June 2016. Although simple on its face, implementation of the law can be complex. In our 8/18 webinar, explore the key provisions of the EoLOA that must be followed in order to fall under its protections. Learn more:

Steuer v. Franchise Tax Board California imposes income tax on the entire amount of trust income derived from California sources, regardless of whether the trustees reside in California. Syufy established an absolute discretion trust for the sole benefit of his daughter, Medeiros, a California resident. The trust had two trusteesa California resident and a Maryland resident. In 2007, the trustees sold stock, thereby generating capital gains on California-sourced income. The...y reported the capital gains on the trust’s California fiduciary income tax return, and paid the income tax. The trustees did not distribute the sale proceeds to Medeiros in 2007. In 2012, the trustees filed an amended fiduciary income tax return for tax year 2007, alleging overpayment of $150,655 and requesting a refund in that amount under the theory they should have apportioned one-half of the capital gains to the California trustee as taxable income, with the other one-half apportioned to the Maryland trustee with no California tax owing on that one-half. Following an unsuccessful administrative appeal, the trustees filed a tax refund suit in 2016. The trial court granted the trustees’ motion for summary judgment, ruling that the trust’s California taxable income should have been determined by apportioning its income one-half to its California trustee and one-half to its Maryland trustee. The trustees were awarded their requested refund plus interest. The Franchise Tax Board appealed. Click here for more information: https://calawyers.org/trusts/steuer-v-franchise-tax-board/

Cundall v. Mitchell-Clyde Unless a trust explicitly states that its revocation procedure is exclusive, a trustor can utilize the statutory method of revocation. John Martin as trustor and initial trustee established a revocable trust for the benefit of Robert Cundall on February 11, 2009 (the February Trust). After having a falling out with Cundall, Martin revoked the February Trust and established a new trust with different beneficiaries (the May Trust). The February Trust s...tated that the trustor may revoke the trust at any time by delivering to the trustee (Martin) and successor trustee (Cundall) an appropriate written revocation document, signed by the trustor and his then-estate planning attorney, Frances Diaz. Martin did not follow the revocation method specified in the February Trust. Instead, Martin used the statutory revocation method, which requires that the trustor sign a revocation document and deliver it to the trustee. Cundall filed a petition for instructions seeking a determination that the February Trust was not properly revoked. He claimed that the procedure set forth in the February Trust was the exclusive method of revocation that Martin could employ, and because he failed to do so, all of the trust assets should pass to Cundall. The successor trustee and beneficiaries of the May Trust filed a petition seeking an order confirming the validity of the May Trust. The trial court found that the February Trust did not provide an exclusive method for revocation, and concluded that Martin’s revocation was valid. Click here for more information: https://calawyers.org/trusts-and/cundall-v-mitchell-clyde/

LPS Conservatorships Trial Delay An LPS Conservatee’s right to trial within 10 days of demand is directory, not mandatory. Jose B. suffered from schizophrenia and was unwilling and unable to accept voluntary treatment. For a 10-year period starting in 2008, the Los Angeles County Public Guardian was granted a Lanterman-Petris-Short (LPS) conservatorship over Jose with no objection. In 2018, Jose objected, for the first time, to the Public Guardian’s petition to be reappo...inted and requested a jury trial. Jury trial was delayed 137 days after Jose made the demand. The Public Guardian’s petition was granted after trial. Jose appealed. Click here for more information: https://calawyers.org/trusts-an/conservatorship-of-jose-b/

Our 7/21 webinar will cover the scope of authority granted under powers of attorney; strategies for drafting provisions to meet your clients’ specific needs and to avoid litigation; proper management and administration by agents serving under powers of attorney; and litigation relating to breaches of duties by agents. Join us:

Conservatorship of J.Y. LPS conservatees have a constitutional equal protection right not to testify against themselves in conservatorship proceedings. The Contra Costa County Public Guardian served as the Lanterman-Petris-Short (LPS) Act conservator of J.Y.’s person beginning in 2004 and was successively reappointed each year through 2018. In 2018, the Public Guardian petitioned for reappointment and J.Y. objected, requesting a jury trial. At trial, over her objection, J.Y.... was compelled to testify during the Public Guardian’s case in chief, along with two experts who opined that J.Y. was gravely disabled. The jury found J.Y. was gravely disabled, and the court reappointed the Public Guardian as conservator of J.Y’s person for a further year. Click here for more information: https://calawyers.org/trusts-and-e/conservatorship-of-j-y/