No Abuse of Discretion in Acrimonious Probate Proceedings.
Probate proceedings are another area where emotions run high as well as attorney’s fees for the combatants. Losing combatants can be hit with fees/costs for the winner’s efforts, and trustees may have to restore fees/costs paid from a trust where the court determines that these expenditures only personally benefited the trustee.
Cardelucci v. Cardelucci, Case No. E049975 (4th Dist., Div. 2 Dec. 8, 2011) (unpublished) illustrates these results, involving a son beneficiary who successfully had father removed as a trustee over deceased mother’s inter vivos trust and prevailed in litigation over jewelry (“a woman’s best friend,” diamonds and all)/joint tenancy issues.
Father’s appeal was not successful, with the abuse of discretion review standard not being surmounted–similar to the other December 8 unpublished decision we have reviewed.
The lower court ordered father to reimburse the trust for litigation expenses and other inappropriate trust fund distributions to himself. This was correct because a trustee cannot use trust funds to defend his personal interests. (Prob. Code, § 15684; Whittlesey v. Aiello, 104 Cal.App.4th 1221, 1226-1227, 1230 (2002).)
Son’s efforts in compelling trust accountings and obtaining trustee removal were reimbursable by father to the tune of $220,000 in attorney’s fees. (Prob. Code, § 17211(b).) Also, the lower court did not err in ordering that father reimburse the trust $100,000 he charged the trust for his own litigation expenses incurred in unsuccessfully opposing his removal as trustee. (See Conservatorship of Lefkowitz, 50 Cal.App.4th 1310, 1314-1315 (1996) [no fees allowable to trustee lacking objective reasonableness and subjective good faith in resisting a trustee removal petition].)
BLOG UNDERVIEW–The appellate court in this one sustained the decisions of Retired Associate Justice Kenneth Andreen. Retired Justice Andreen used to serve on the Fifth District Court of Appeal when co-contributor Mike was an appellate clerk. Justice Andreen subsequently married Patricia Noyes, who was a clerk colleague of Mike’s. Mike wishes them holiday cheer.