At the Texas Bankers Association Annual Convention on April 24, 2025, David F. Johnson presented his paper “Fiduciary Litigation Update 2023-2024.” David addressed key topics, including the right to a jury trial in trust...more
Two recent Michigan Court of Appeals cases delve into what it takes to successfully pursue an undue influence claim. In re Sherrod Estate, No 369863, 2025 WL 855275 (Mich Ct App Mar 18, 2025) (unpublished) and In re Estate of...more
A recent California appellate case clarifies the application of the statute of limitations to trust amendments. In Smith v. Myers (2024) 103 Cal.App.5th 586, a dispute arose between the decedent’s children and his widow...more
Irrevocable trusts can be effective for estate planning, but they can also create problems. This blog post will draw lessons from the case of Rupert Murdoch, the billionaire owner of Fox News and News Corporation, who is...more
Earlier this year, the California Supreme Court ruled that a trust amendment can be valid even if the trustor did not follow the specific amendment procedure referenced in the trust document itself because the trustor (trust...more
Regular readers of this blog have already noted my particular enthusiasm for creativity in legal arguments. I am not a judge (Hi Judge Galvin!), but if I were, I would be sorely tempted to pattern my unique brand of...more
The California Supreme Court recently addressed the complexities surrounding trust amendments in the case of Haggerty v. Thornton (2024) 15 Cal.5th 729. The case settled the confusion over potential conflicts between trust...more
For centuries, serious legal scholars have debated what is possibly the most vital question of our times: in what ways, if any, does our judicial system differ from basketball? Now, thanks to the California Supreme Court’s...more
Understanding the significance of trustee notice, as mandated by Probate Code Section 16061.7, is crucial in trust administration. This notice is required upon the occurrence of certain events, most notably, when a trust...more
A person communicates a desire to make estate planning changes in the future but dies before the changes are made. Can a court modify or reform a trust to give effect to this intent? No. In re Brody Trust, Docket No 362214...more
We’ve been your dogged reporter on the ever-growing logjam in the Courts of Appeal on trust modification procedure. We’ve followed the twists and turns that courts have taken as they’ve tackled the question of what happens...more
It has become more common for trustors to select someone who is not a beneficiary of the trust estate, often a close relative, to serve as trustee. While the “crown” of trusteeship imbues that trustee with tempting powers –...more
This blog has devoted a lot of real estate to the use of anti-SLAPP motions in California trust and estate litigation. Though the courts’ treatment of such motions is varied and oftentimes unpredictable, Californians can...more
Plaintiffs who sue for financial elder abuse run the risk that defendants will spend ill-gotten gains before they can be recovered. To address this problem, the California Legislature gave plaintiffs the opportunity to...more
Can a California court stop others from changing an elder’s estate plan? Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust....more
The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone...more
The Legislature and courts endeavor to create well-defined laws, lest we devolve into the governance of Emperor Nero, who reputedly posted edicts high atop columns so as to be painfully difficult for the masses to read. As...more
Many family member trustees are uncertain about whether and to what extent they can use trust assets to obtain legal representation. For example, when two parents choose their daughter, upon their incapacity or death, to...more
There has been considerable discussion regarding including arbitration clauses in estate planning documents over recent years. Some estate and trust attorneys are actively pushing for the inclusion of such clauses. Recently,...more
Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) ___ Cal.5th ___, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the...more
A key feature of a California revocable trust is that it can be amended. Revising a trust can, however, seem like an irksome chore so it’s common for creators of trusts (i.e., “settlors” or “trustors”) to shrug off an...more
Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes...more
No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate...more
Can a disinherited person contest a trust amendment under California Probate Code section 17200? No, said the Court of Appeal last August in Barefoot v. Jennings (2018) 27 Cal.App.5th 1. The Barefoot opinion put pending...more
No contest clauses are an ever-evolving area of the probate law in California. The Court of Appeal further refined the rules governing no contest clauses in a decision issued last week, Aviles v. Swearingen (2017) ___...more