However, Income Beneficiary Was Assessed With $45,967.53 In Fees In Favor Of Remainder Beneficiary For Filing False Affidavit In Colorado Probate Action.
DeJohn v. Wheeler, Case Nos. A137825/A138421 (1st Dist., Div. 3 Jan. 21, 2016) (unpublished) involved a contentious probate dispute involving an income beneficiary, an independent trustee, and remainder beneficiary, with remainder beneficiary dismissing a Colorado probate action given representations about obtaining an accounting and with remainder beneficiary obtaining a substantial compensatory award of close to $1.7 million jointly and severally against income beneficiary and trustee in a California probate case based on various breach of fiduciary duty and improper accounting contest claims.
The appellate court found that trustee was not liable, so that portion was reversed. The fee award in the California case was reversed, mainly because the reviewing court overturned several portions of the compensatory award such that income beneficiary’s success on appeal made it necessary to reexamine whether her accounting positions were unreasonable and in bad faith under Probate Code section 17211(b). However, the fee award relating to remainder beneficiary’s expenses in the Colorado action was affirmed given that the false defensive affidavit showed that income beneficiary’s positions were unreasonable and in bad faith.