Los Angeles Probate Litigation Attorney Blog

A "no contest" clause is an item inserted into many wills and/or trusts to reduce the likelihood that a beneficiary will mount a court challenge to the document. The California legislature modified the statute governing no contest clauses in recent years, attempting to simply the law regarding these provisions. In the process, however, the state's new statute creates some potential traps for the unwary beneficiary.

Under California law in effect before 2010, will or trust contests were a high-stakes, all-or-nothing proposition. For example, if a woman had a will that left her estate equally to her son and daughter but, shortly before her death and during a visit from her daughter, she created a new will, with a no contest provision, leaving 75% of her assets to the daughter, and 25% to the son, then the son would face a risky dilemma if he contested the new will. If he won, the first will would govern, and he would receive one-half of his mother's estate; lose, and the no contest clause from the second will would take effect and he would receive nothing.

Finding the penalty of total forfeiture excessively punitive, the legislature changed the law, effective 2010. The new law states that forfeiture clauses are generally not enforceable against challengers if they had probable cause for bringing the action.

Beneficiaries should remain mindful, though, that there are indirect ways to trigger a forfeiture clause, some of which are not necessarily intuitive. In a 2002 case, Estate of Gonzalez, a group of siblings offered their father's 1992 will for probate, which contained a no contest provision. A fourth sibling, Jorge Gonzalez, submitted for probate a 1998 will. The court concluded that the 1998 will was the result of Jorge's undue influence, that Jorge knew the will was not valid and, by offering it for probate, he effectively challenged his father's first will, and did so without probable cause. As a result, the no contest clause within the 1992 will was enforceable and Jorge received nothing from his father's estate.

Continue reading "Dealing with No Contest Clauses in California Wills, Trusts" »

A now-deceased man's estate planning oversight yielded a dispute that will now be decided by the U.S. Supreme Court. The case of Hillman v. Maretta pits the man's ex-wife, whom he named, and never replaced, as the death beneficiary on a life insurance policy, and the man's current wife, who claimed that the ex-wife lost her claim to the money when she and the man divorced.

In 1996, Warren Hillman named Judy Maretta, his wife, as the primary beneficiary on his Federal Employees' Group Life Insurance (FEGLI) policy. Two years later, the couple divorced. Hillman married his subsequent wife, Jacqueline, in 2002. Warren and Jacqueline remained married until Warren died in 2008. However, Warren never updated his insurance policy to remove Judy and name a new beneficiary.

Jacqueline filed a claim for the policy benefit, which was nearly $125,000. Judy also filed a claim for the benefit. The money went to the ex-wife, as she remained the named beneficiary under the policy. Jacqueline sued, arguing that, under Virginia law, Warren and Judy's divorce automatically revoked the beneficiary designation naming Judy. Judy contended, and the Virginia Supreme Court agreed, that the Virginia statute did not control here. The federal statutes governing FEGLI expressly state that the order of precedence for receiving a death benefit gives first priority to "the beneficiary or beneficiaries designated by the employee," (5 USC 8705(a)) and also that the "provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State or political subdivision thereof... to the extent that the law or regulation is inconsistent with the contractual provisions" (5 USC 8709(d)(1).) The Virginia court determined that these federal statutes clearly pre-empted Virginia law and mandated awarding the funds to Judy.

The U.S. Supreme Court agreed to take the case as a split had emerged over the question, with the Virginia and Alabama high courts, along with the federal 7th Circuit and 11th Circuit appellate courts, ruling that FEGLI's governing statutes pre-empted state law, but the high courts in Indiana and Mississippi concluding that the federal statutes regarding FEGLI did not pre-empt state law.

Continue reading "High Court to Review Case Awarding Insurance Proceeds to Ex-wife" »

A surviving spouse argued, to no avail, that his marriage to his registered domestic partner served as an automatic invalidation of the couple's domestic partnership agreement regarding property and assets. In Konou v. Wilson, the California Court of Appeal ruled that the agreement served a similar function to a pre-nuptial agreement, and the couple's marriage did nothing to void it.

In 1986, Philip Wilson created a will, leaving half his estate to his siblings, and the other half to Douglas Vanderburg, his registered domestic partner. The couple later terminated their partnership in 1993. In 2005, Wilson began a relationship with Antipas Konou. The couple signed a domestic partnership agreement in 2006. In the agreement, each partner disclaimed any present or future right to the assets, income or estate of the other. The couple registered as domestic partners in 2006, and married in San Francisco in the summer of 2008. Later that year, Wilson committed suicide.

In January 2009, Vanderburg disclaimed his rights under Wilson's will. Konou sought to inherit from Wilson's estate as an omitted spouse. Wilson's siblings objected.

The trial court agreed that Konou qualified as a pretermitted spouse. Under Cal. Prob. Code 21610, "if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments," then that spouse is deemed legally pretermitted and, normally, entitled to a share of decedent's estate as set out by the statute.

However, the existence of the domestic partnership agreement proved the undoing to Konou's case. The agreement expressly disclaimed any right either partner had in the estate of the other. The court further concluded that Konou's marriage to Wilson did not void the domestic partnership agreement, which constituted a valid waiver of his rights to Wilson's estate.

Continue reading "California Couple's Marriage License Did Not Automatically Wipe Out Terms of Domestic Partnership Agreement" »

Imagine a scenario where a parent passes away with four children and $400,000 in assets. The parent created a will stating that each child will inherit one-fourth of his estate. That sounds simple enough, right? Unfortunately, just such a scenario often turns into a long legal fight between siblings. Even in cases of modest wealth, relationships that become strained over an inheritance battle rarely recover.

Although a will can be a useful estate planning tool, it also has many shortcomings. A will is essentially a list of instructions regarding how a deceased person's property should be distributed. A will generally has little value until an estate enters the probate process. Once an estate has entered probate, a judge will determine how assets are distributed using the will as a guide. Unfortunately, the probate process can be lengthy and expensive. Additionally, private information will likely become public during probate proceedings.

In order to avoid probate, many people set up a revocable trust, a tool that can enable you to transfer ownership of assets without going through a frequently lengthy probate process. Normally, when someone creates a revocable trust, a provision in the document provides that all of the individual's assets are transferred into the trust upon death. The owner of a revocable trust will also choose a trustee who will manage any assets placed in the trust. A well-planned trust document will provide for possible contingencies and leave little ambiguity that may lead to later disagreements. Although litigation may still arise even after a revocable trust is created, the likelihood of conflict between heirs is lessened.

Another possible legal battle waiting to happen in many families stems from an individual's unexpected disability or incapacitation. Although older folks tend to worry more frequently about who will make decisions for them in the event of a stroke or other illness, disability from an unexpected accident or other cause is a real risk for many young people. Because of this, everyone should create a living will that outlines what sort of medical treatment to provide in the event of incapacitation and choose a healthcare proxy who will make medical decisions on their behalf. By creating such documents, an individual may have the ability to keep loved ones from battling over their best interests before a judge.

Continue reading "A California Will May Not Prevent an Inheritance Battle" »

Artist Thomas Kinkade died of an accidental drug and alcohol overdose at his home on April 6th at age 54. Since that time, a legal battle between Kinkade's estranged wife, Nanette, and his live-in girlfriend, Amy Pinto-Walsh, over the artist's estate has ensued. Earlier this month, Santa Clara County Superior Court Judge Leslie Nichols ordered several disputes between the parties to confidential arbitration proceedings in lieu of an open probate court battle.

Pinto-Walsh initially petitioned the San Jose court for legal authority to oversee approximately $66.3 million of Kinkade's estate. 48-year-old Pinto-Walsh also reportedly believes she was painted as a gold digger in the media and asked that at all proceedings regarding Kinkade's estate be held in open court so that her reputation may be redeemed. Nanette Kinkade opposed Pinto-Walsh's petition and requested a restraining order to keep Kinkade's girlfriend from speaking about estate matters in public.

One of the issues sent to arbitration is whether Nanette Kinkade violated the late artist's medical directive which stated Pinto-Walsh had a power of attorney over medical matters and the disposition of his body. Instead, a trustee of Kinkade's estate reportedly attended the coroner, made funeral arrangements, and refused to allow Pinto-Walsh to attend the artist's funeral. Another issue that will be arbitrated surrounds an alleged confidentiality breach made by Pinto-Walsh when she spoke to the media in the days immediately following Kinkade's death.

Only Pinto-Walsh's claim that Kinkade left the home in which the couple was living at the time of his death and an additional $10 million to her will proceed in probate court. In support of her claim, Pinto-Walsh submitted two shaky, barely legible, handwritten documents which were purportedly written by Kinkade last fall. In the documents, Kinkade allegedly bequeathed his mansion to Pinto-Walsh so she could establish a museum of his artwork inside the structure. The artist also reportedly bequeathed $10 million to his girlfriend in order to fund museum expenses. The portion of the late artist's estate Pinto-Walsh seeks to administer is believed to be the value of artwork already inside of the home.

The next hearing in the legal battle is scheduled for July 2nd. At the hearing, the court is expected to determine whether the handwritten notes are authentic, and if so, whether Pinto-Walsh unduly influenced the artist when the notes were created. An attorney for Nanette Kinkade stated that the artist's last will did not include Pinto-Walsh. Additionally, he said the estranged couple's joint formal, written, and irrevocable estate plan was up to date at the time of Kinkade's death.

Continue reading "Battle Over Thomas Kinkade's California Estate Continues" »

A California appeals court ruled that a surviving spouse who was awarded a portion of a decedent's estate pursuant to California Probate Code Section 21611, after initially being omitted from a will or other instrument, may be sued for financial elder abuse committed while the decedent was alive.

In Estate of Dito, Barbara Merritt, the daughter of Frank Dito filed a petition in trial court alleging that his wife, Elenice, committed financial elder abuse against him prior to his death. Merritt sought an order from the trial court stating Elenice should be treated as having predeceased Frank for purposes of distribution of the estate pursuant to California Probate Code Section 259. The trial court dismissed the petition on res judicata grounds due to the existence of previous litigation between the parties regarding the same matter. Merritt then filed an appeal with California's First District.

The facts of the case surround a rather unusual marriage. In 1994, Brazilian national Elenice began working in violation of her visa as a housekeeper for an elderly couple, Frank and Roasana Dito. After Rosana died in 1995, Elenice continued on at the home to care for Frank. In 1997, 94-year-old Frank married 28-year-old Elenice. Prior to the couple's marriage, however, they entered into a prenuptial agreement which stated that neither party had a right to alimony, maintenance, or support in the event of a divorce or the death of one of the parties.

After Frank died in 2004, both Elenice and Merritt filed separate petitions to administer his estate. The will and all other estate documents provided to the court listed only Rosana as Frank's wife. In 2005, Elenice filed a petition with the court seeking a share of Frank's estate as an omitted spouse. Following a bench trial, the court held the couple's prenuptial agreement was unenforceable and Elenice was in fact Frank's omitted spouse. The court also held that Elenice was entitled to a share of Frank's estate pursuant to the probate code. The First District of California later affirmed the trial court's decision and Merritt filed the case at issue.

According to the Appeals Court, the doctrine of res judicata did not apply to the second case as the primary rights involved in the two litigations were inherently different. The court went on to say the primary right at issue in the previous case was Elenice's right to inherit. In the second case, Frank's right to not be abused was the issue. Because the two rights were different, the court ruled that the latter case was not barred.

The First District also held that under Section 259 of the Probate Code, a spouse who has committed financial elder abuse is only disinherited to the extent of the abuse. Consequently, even if Elenice committed financial elder abuse she was still entitled to receive any inheritance above the amount of the alleged abuse.

Continue reading "A Surviving Omitted Spouse May Be Sued for Elder Financial Abuse in California" »

Last month, California's Fourth Appellate District recognized a claim for intentional interference with an expected inheritance (IIEI) in Beckwith v. Dahl. Prior to Beckwith, anyone who expected to inherit according to a California will or trust could only sue to overturn an instrument in probate court. In order to do so, however, a party must have standing. Anyone related to a decedent by blood would have little difficulty establishing standing in probate court. In contrast, an unmarried partner or friend who was cut out of a will at the last minute would likely be unable to establish standing.

In Beckwith, the decedent, Marc MacGinnis, was in a long-term committed relationship with Brent Beckwith. The couple lived together and at times engaged in joint business dealings. MacGinnis reportedly prepared a will on his computer that left half of his estate to Beckwith and half to his only surviving relative, Susan Dahl. Dahl was MacGinnis' estranged sister. Unfortunately, MacGinnis failed to print or sign his purported will before his health began to decline.

In May 2009, MacGinnis underwent surgery on his lungs. Prior to surgery, he asked Beckwith to print the will he prepared on his computer and bring it to the hospital for his signature. After Beckwith was unable to locate the will, MacGinnis asked him to prepare a new one for him to sign. Prior to presenting the will to MacGinnis for signature, Beckwith emailed a copy to Dahl. Dahl responded by stating she believed creating a living trust would be more beneficial than a will. Dahl then agreed to have a friend prepare a trust document for MacGinnis to sign. Because Beckwith was waiting on trust documents from Dahl, he never presented the written will to MacGinnis who was immediately placed on a ventilator following his surgery. Less than one week later, MacGinnis died intestate after Dahl had him removed from the ventilator in accordance with physician recommendations.

Two weeks after MacGinnis died, Dahl opened probate proceedings in Los Angeles Superior Court and failed to identify Beckwith as an interested party. In January 2010, Dahl petitioned the court for final distribution of MacGinnis' estate. When Beckwith attempted to oppose Dahl's petition, the probate judge informed him that he had no standing in the case.

On July 20, 2010, Beckwith brought a civil action against Dahl for IIEI, negligence, and deceit by false promise. The trial court stated recognition of the IIEI tort in the State of California was a matter for an appellate court and dismissed Beckwith's entire complaint without leave to amend. Beckwith timely filed an appeal with California's Fourth Appellate District.

The appellate court examined whether California should recognize a tort remedy for IIEI. Previous California cases that considered the tort never expressly recognized or declined to recognize IIEI. Although the tort was not previously recognized in California, it was recognized in twenty-five of the forty-two states that have considered the cause of action. After discussing the policy considerations associated with recognizing IIEI, the Fourth Appellate District stated the tort applies in California cases where a party cannot bring a claim in probate court.

Although the appellate court recognized the IIEI tort, it ruled that Beckwith failed to sufficiently allege the requirements for the tort in his complaint. According to the court, Beckwith could not bring a claim for IIEI because Dahl's actions were directed at Beckwith instead of the decedent. The court remanded the case after holding Beckwith had sufficiently pleaded a case for fraud against Dahl based on her alleged lies regarding the creation of a trust document.

Continue reading "California's Fourth Appellate District Recognizes Intentional Interference with an Expected Inheritance Tort" »