This Section and its working committees (Guardianship / Conservatorship Project and Elder Law) deal with all issues relating to estate planning and the probate of decedents' estates, the avoidance of probate, and the protection of incompetents and their assets through guardianships and conservatorships.

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Law Updates --> 2008

Beverly Hills Bar Association
Legislative Updates
California Court of Appeal

September  2008
Official Section
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Estate of Kievernagel -166 Cal.App.4th 1024 filed 9/11/08

Widow has no right to use late husband�s frozen sperm to attempt to conceive a child where late husband signed an agreement with the company storing the frozen sperm providing that the frozen sperm was to be discarded upon his death; donor�s right to control the disposition of sperm takes precedence over donee�s right to procreate.

Gridley v. Gridley 166 Cal.App.4th 1562 filed 9/23/08

A temporary judge assigned to resolve dispute between testator�s family members did not have continuing jurisdiction to hear alleged substantive claims arising from sale of probate estate�s assets against third parties who were not beneficiaries of probate matter 10 years after the probate estate closed. Because stipulation for appointment of a temporary judge need not be express or in writing, where plaintiffs participated in numerous hearings before temporary judge without objection and while represented by separate counsel, plaintiffs implicitly consented to appointment. Where temporary judge�s authority did not extend to adjudication of later dispute, temporary judge also lacked authority to rule on attorney disqualification motion. Temporary judge�s determination regarding scope of authority was a final order and thus appealable.

Wood v. Jamison 167 Cal.App.4th 156 filed 9/30/08

Where attorney was found guilty of malpractice and breach of fiduciary duty for failing to inform lender or any other party to loan transaction that he was acting as lender�s attorney while acting as borrower�s attorney, and then purported to produce newly discovered evidence in form of an agreement reflecting a bargain between lender and borrower stating that lender was advised to seek independent counsel and understood attorney only represented borrower, trial court did not err in denying attorney�s motion for a new trial because document was unlikely to produce a different result where it came from an unknown source, there was no evidence regarding circumstances of document�s creation, there was no evidence lender had any legal advice regarding attorney�s conflict of interest, and attorney�s subsequent actions belied word of agreement that attorney did not represent lender. Where attorney had a full and fair opportunity to discover evidence that would have impeached adverse witness and present it at trial but failed to take advantage of discovery, trial court could reasonably conclude that attorney was not prevented from having a fair trial. Evidence of malpractice and breach of fiduciary duty was "overwhelming" where attorney failed to advise lender of conflict of interest, failed to refer lender to independent investment advisor, and obtained a profit from loan transaction. Money paid to settle a foreclosure action taken to protect lender�s assets was not a voluntary payment for which attorney was not liable where loan would not have occurred but for attorney�s conduct. Attorney who knowingly aided and abetted client�s scheme to obtain a $250,000 loan from elderly woman and accepted a $4,000 "finder�s fee" paid through loan proceeds committed financial elder abuse.

 

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