Amended Petition for Fees Successfully Defeated on Demurrer.
Attorneys doing probate work need to be careful about the clients they are representing to make sure there is some basis for fee entitlement. The next case illustrates one attorney losing a bid to obtain fees through an amended probate petition.
An attorney in Jaffer v. Klems, Case No. G048285 (4th Dist., Div. 3 Mar. 27, 2014) (unpublished) did some work for Diane, a future income beneficiary under a then revocable trust whose trustor/trustee/beneficiary was Ann (eventually placed in a conservatorship). After Ann died and way down the line, attorney petitioned to recover fees for the work he did for Diane. The trustee successfully demurred to the amended petition, prompting an appeal by disgruntled attorney.
The result was affirmed in an opinion authored by Justice Thompson.
The problem here was one of standing: Diane had no standing to sue the trustee for breach of fiduciary duty (the client under whom attorney requested fees) because the trust was revocable and the trustor was still alive at the time of the work. That meant Diane had no rights to assert against the trustee, with the result not varying because Ann was the subject of a conservatorship. (Johnson v. Kotyck, 76 Cal.App.4th 83, 85 (1999).)
BLOG KUDOS AND BIT OF HUMOR—Ben Jackson of Kendrick, Jackson & Kearl, an experienced local probate attorney, was the winning attorney for respondent. Way to go, Ben. Now for a bit of humor: Randall C. Young has penned “The Dictionary of Legal Bull_ _ _ _,” a compendium of humorous, tongue-in-check definitions for certain legal words. Mr. Young defines a demurrer as “[a] responsive pleading stating ‘so what.’” There you go; we couldn’t say it any better.