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Part II — Important 2018 Trends in California Trust Dispute Litigation

On Behalf of | Nov 5, 2018 | Trust Disputes

Buffington Law Firm’s trust litigation team has broad experience in litigating trust disputes.  In last week’s Blog article we noted that a recent Court of Appeal case, Barefoot v. Jennings, will provide controlling authority requiring significant changes to how certain types of trust disputes must be litigated.  Specifically, the holding in that case will deprive certain disinherited persons, or persons deprived of their future positions as trustee, of standing to challenge a trust amendment that affects them under Cal. Probate Code Section 17200.  In the past this statute has been the authority for perhaps most trust contest disputes in California.  This will now change for some of the most common types of trust disputes, specifically in situations where a trust amendment allegedly procured by undue influence or other improper means purports to disinherit a litigant.  Standing is a Consitutional requirement for bringing a lawsuit.  For many trust contests, the powerful Cal. Probate Code Section 17200 will no longer provide a basis for bringing suit for lack of standing by the disinherited person.

There is a legal maxim that every wrong has a legal remedy, and such is the case in these scenarios.  California has long recognized (but less commonly seen) the tort of “Intentional Interference with Expected Inheritance.”  The elements of this cause of action are set forth in California Civil Jury Instruction (CACI) No. 2205.  Specifically, the Plaintiff must prove

1. That Plaintiff expected to receive an inheritance from a decedent’s estate;

2. That Defendant  knew of the expectation;

3. That Defendant engaged in specific wrongful conduct;

4. That by engaging in this conduct, Defendant intended to interfere with Plaintiff’s expected inheritance;

5. That there was a reasonable certainty that Plaintiff would have received the inheritance if Defendant had not interfered;

6. That Plaintiff  was harmed; and

7. That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. 

This Cause explicitly does not require that the Plaintiff was named in the subject will or trust, in any version.  This sharply contrasts with the requirement to establish standing for a probate petition under Probate Code Section 17200–that a litigant be named as a beneficiary in the current will or trust version as required by Barefoot v. Jennings.  Only a reasonable expectation of inheritance of property must be alleged in the Intentional Interference claim.

We expect that the immediate effect of Barefoot v. Jennings will be that most trust contests alleging disinheritance caused by wrongful conduct, e.g. Undue Influence will now be brought as civil suits in ordinary civil court, rather than as trust contests in probate court.  This may sound like a wonkish technical difference of importance only to lawyers, but in reality this is a far-reaching change.  For example, the existence of a CACI (jury) instruction indicates that such disputes entitle the plaintiff to a jury trial — which trust contests brought by petition in probate court do not allow.  Further, it appears to us that bringing suit under this Intentional Interference Cause, rather than as a Probate petition, will force the civil departments to handle many or most trust disputes.  This should improve the rapidity with which such claims move to trial in those counties experiencing backlog problems in their trust divisions.  These are important, and in our view positive, changes.

Buffington Law Firm’s trust litigation team has decades of experience in handling trust and inheritance disputes.  If you are faced with such a situation, we invite you to give us a call for a free legal consultation.  All calls are handled by an experienced estate litigation attorney, are completely confidential, and there is never any obligation.