Beverly Hills Bar Association
Legislative Updates
California Court of Appeal

Trusts and Estates
Hansen v. Hansen (12/18/03) (Fourth District). Conservator, executor, or personal representative of a decedents estate who is not licensed to practice law cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings, including general civil actions. When such a nonlawyer brings a nonprobate action in propria persona on behalf of the estate, the proper appellate remedy is to reverse with directions for the trial court to strike the complaint.
Cite as 2003 SOS 6533
Full text http://www.metnews.com/sos.cgi?1203%2FG031499   


Estate of Rabinowitz (12/18/03) (Second District). Requirement that two persons witness the “acknowledgment” of a power of attorney for the power to be effective under Probate Code Secs. 4121 and 4122 was satisfied where person granting power orally, and separately, told witnesses that he had done so and witnesses signed power’s attestation clauses after his death.
Cite as 2003 SOS 6535
Full text http://www.metnews.com/sos.cgi?1203%2FB162289


Fortunato v. Superior Court (Ingrassia) (12/17/03) (Second District). Submission of personal tax returns to a bank for the purpose of obtaining a loan did not effect a waiver of taxpayer’s privilege against forced disclosure of the returns. Tax-return privilege applies in probate proceedings.
Cite as 2003 SOS 6439
Full text http://www.metnews.com/sos.cgi?1203%2FB169892


People v. Watson (12/10/03) (Cal.App.4th 2003, A098183). Certified for Partial Publication. This case questions the constitutionality and application of Evidence Code section 1380 Evid., a provision adopted in 1999 to facilitate the introduction of hearsay statements by the victims of various forms of elder abuse. In the published portion of this opinion, the court concluded that section 1380 Evid. meets constitutional standards, but that in this case the prosecution failed to lay an adequate foundation for the admission of videotaped testimony of one of the victims that was received under its authority. Although the, trial court properly found that the elderly declarant was competent to testify at the time he gave his statement, competency is not a sufficient indication of trustworthiness to justify admission of the statement.


Family Law
In re Marriage of Benson (12/23/03) (Second District). Doctrines of partial performance and estoppel provide an exception to the requirement of Family Code Sec. 852 that agreements to transmute community property to separate property be in writing.
Cite as 2003 SOS 6589


Trusts and Estates
In proceeding pursuant to Probate Code Sec. 11700, motion to reconsider court’s order determining persons entitled to distribution of estate extends time for appeal under Rule 3(d) of California Rules of Court. Order denying motion for reconsideration in probate proceeding, since it is not expressly made appealable by any provision of Probate Code, is not appealable. Amendments to Probate Code that became effective after date on which court issued orders are not applicable to them. Inter vivos trust that provided for distribution to son of trustors, a husband and wife, upon their deaths, and did not provide for alternative distribution, did not evidence intent to preclude distribution to heirs of wife where son predeceased trustors. Intent of husband as to distribution of his property, expressed in his will, does not control distribution under trust where intent was not expressed in trust instrument. Where plain language of husband’s will expressed an intent to have residue of estate pass to wife, if trust were either not operative or invalid, wife survived husband, and estate could not be distributed as prescribed by trust, fact that wife died prior to distribution of estate did not disentitle her heirs from distribution of residue.
Estate of Stoddart - filed February 19, 2004, Fourth District, Div. One
Cite as 2004 SOS 789
Full text http://www.metnews.com/sos.cgi?0204%2FDO41026

Trusts and Estates
Sureties’ motion to place an equitable lien on funds turned over to the public administrator of a decedent’s estate by the previous defalcating administrator, based on sureties’ claim of right of subrogation to the estate’s interest in the funds because the sureties had been found liable on fiduciary bonds issued to the former administrator and had paid the estate on their bonds, was premature because the estate had not yet been made whole.
American Contractors Indemnity Co. v. Saladino - filed February 24, 2004, Second District, Div. Seven
Cite as 2004 SOS 875
Full text http://www.metnews.com/sos.cgi?0204%2FB158573



Trusts and Estates
While assets in a revocable living trust of a deceased settlor are subject under Probate Code Sec. 19001 to the claims of the creditors of his or her probate estate, to the extent the estate itself is inadequate to satisfy those claims, trustee of such a trust has no duty, following the death of the settlor, to preserve trust assets for the benefit of creditors with claims pending against the probate estate; trustee’s only duty to such creditors is to refrain from affirmative misconduct that defeats the creditors’ reasonable expectation for a recovery from trust assets.
Arluk Medical Center Industrial Group, Inc. v. Dobler - filed March 22, 2004, Second District, Div. Seven
Cite as 2004 SOS 1455
Full text http://www.metnews.com/sos.cgi?0304%2FB162954

Trusts and Estates
Provision of Probate Code Sec. 15305 permitting court order a child support judgment satisfied out of future payments that the trustee of a spendthrift trust, “pursuant to the exercise of the trustee’s discretion, determines to make to or for the benefit of the beneficiary” authorized court to order trustee to exercise his discretion to make such disbursements where trustee’s decision not to make disbursements to beneficiary was in bad faith and for improper purpose of avoiding satisfaction of support judgment.
Ventura County Department of Child Support Services v. Brown - filed March 29, 2004, Second District, Div. Six;
Cite as 2004 SOS 1629
Full text http://www.metnews.com/sos.cgi?0304%2FB168108


Trusts and Estates
Trial court properly looked to Colorado law in determining that adults adopted under Colorado’s adult adoption statute did not qualify as “issue” of the person adopting them for the purposes of distributing remaining assets of California trust since under California Code of Civil Procedure Sec. 1913(a) judicial records of sister states are given the same effect in California that they would have in the state where made, and Colorado adult adoptions do not establish a legal parent-child relationship between the parties.
Ehrenclou v. MacDonald - filed March 30, 2004, Fourth District, Div. Three
Cite as 2004 SOS 1674
Full text http://www.metnews.com/sos.cizi?0404%2FG032020


Trusts and Estates
Voluntary dismissal provision of Code of Civil Procedure Sec. 581(b)(1) is not inconsistent with Lanterman-Petris-Short Act and may be utilized by the public conservator to dismiss or withdraw a petition for the reestablishment of an LPS Act conservatorship. Request by conservatee to substitute her common-law husband as conservator was not a request for affirmative relief barring dismissal under Sec. 581(b)(1), and even if construed as affirmative relief, did not bar dismissal since it was made after dismissal was tendered.
Conservatorship of Martha P. - filed April 12, 2004, Fourth District, Div. One
Cite as 2004 SOS 1881
Full text http://www.metnews.com/sos.cgi?0404%2FDO42175