Allegations Of Petition Involved Breach Of Loyalty Claims, Not Just Litigation Positions. Gaynor v. Bulen, Case No. D07097 (4th Dist., Div. 1 Jan. 23, 2018) (published) involved a surcharge petition brought by certain beneficiaries against co-trustees which, among other things, challenge attorney’s fees claimed by the trustees. One of the trustees filed a SLAPP […]
Also, In Contested Probate Proceedings, An Evidentiary Hearing Is Required Unless Parties Stipulate To Using Affidavits Or Declarations. Maldonado v. Giblin, Case No. H041417 (6th Dist. Dec. 27, 2017) (unpublished) is a prime example showing how appellate jurists are attuned to gender equality issues and legislative changes aimed at promoting such equality in the
Probate Fee Awards Are Subject To Broad Equitable Discretion By Probate Court. Cicerone v. Kennedy, Case No. B278452 (2d Dist., Div. 6 Nov. 13, 2017) (unpublished) illustrates that probate judges are granted a large amount of discretion in awarding attorney’s fees to a trustee for a trustee’s attorney work, with the important caveats they
Bad Faith For Purposes Of Fee-Shifting Statute Can Be Based On Circumstantial Evidence. Probate courts, at essence, are courts of equity. As such, in California, there are many Probate Code sections which allow litigants recovery of attorney’s fees and expenses. Probate Code section 859 is one of those fee-shifting provisions, allowing recoupment of fees
Competing Petition Did Not Facilitate Appointment Of A Conservator Under Probate Code Section 2640(c). Conservatorship of Ireland, Case No. B276915 (2d Dist., Div. 1 Oct. 31, 2017) (unpublished) involved a situation where two sons (Dana and John) filed competing conservatorship petitions for conservatorship of their mother after Dana had been appointed temporary conservator. The
Probate Code’s Equitable Principles Supported The End Result. In Gorman v. Lavery, Case No. B271527 (2d Dist., Div. 6 Sept. 18, 2017) (unpublished), a probate court awarded $101,787.26 in attorney’s fees and costs to a residual trust beneficiary against a co-trustee/other trust beneficiary relating to mismanagement of a family trust after a breach
Construction Of Probate Code Section 17211(b) Was Involved. Although unpublished, the Fifth District confronted the scope of Probate Code section 17211(b), the provision allowing assessment of attorney’s fees against a trustee who contests an accounting unreasonably and in bad faith, in Brown v. Jimenez, Case No. F073156 (5th Dist. Sept. 12, 2017) (unpublished).
Lower Court Did Not Err In Failing To Set An Evidentiary Hearing, Because He Considered Relevant Documents In The File As Far As Fee Apportionment. Two Probate Code sections figures prominently in the resolution of the next case, Estate of Webb, Case No. A146787 (1st Dist., Div. 1 Aug. 29, 2017) (unpublished), which involved
Judge’s Familiarity With The Work Sealed The Deal. In Estate of Redlich, Case No. D069436 (4th Dist., Div. 1 May 22, 2017) (unpublished), a probate judge awarded “extraordinary fees” for attorney trust work, with the losing party claiming that this was error because the judge did not allow an evidentiary hearing.
However, Cost Denial Reversed So That Lower Court Can Exercise Discretion. A cantankerous beneficiary, who sent 8,000 – 10,000 emails to trustee during the period of his service, moved to recovery Probate Code section 17211 attorney’s fees and also routine costs based on having partial success in opposing trustee/lawyer’s fees for
