Litigation Alert

• Publication year: 2021
• Author: By Jeremiah J. Moffit, Esq.,* Courtney A. Sorensen, Esq.* Craig S. Weinstein, Esq.*, and Sara Z. May, Esq.*

LITIGATION ALERT

By Jeremiah J. Moffit, Esq.,* Courtney A. Sorensen, Esq.* Craig S. Weinstein, Esq.*, and Sara Z. May, Esq.*

AN ACCOUNTING CAN BE ORDERED AGAINST ANYONE THAT OWES A FIDUCIARY DUTY, THE RIGHT TO OBJECT TO CONSIDERATION OF AFFIDAVITS MAY BE WAIVED IF NOT ASSERTED, AND THE RIGHT TO AN EVIDENTIARY HEARING MAY REQUIRE OFFER OF PROOF OF FACTUAL ISSUES AND EVIDENCE TO BE ASSERTED AT THAT HEARING

Conservatorship of Farrant (2021) 67 Cal.App.5th 370

The Second District Court of Appeal held that a court can require an accounting from any party that possesses a fiduciary duty. Further, the Probate Court may consider affidavits and declarations as evidence, even in contested proceedings, if no one objects to their consideration. In addition, the trial court did not abuse its discretion in denying the request for an evidentiary hearing where no offer of proof is made to specify the factual issues and evidence to be presented at the requested hearing.

A conservator filed a petition to compel an accounting from an attorney-in-fact. The attorney-in-fact failed to file a timely accounting, for which the trial court awarded sanctions. The conservator subsequently objected to the accounting, submitting affidavits in support of the objection. Following non-evidentiary hearings in July 2020, the trial court found that the attorney-in-fact failed to report pension income that he controlled, breached his fiduciary duty by comingling funds and self-dealing, and failed to include other income and expenses in the accounting. The attorney-in-fact requested an evidentiary hearing but did not specify the factual issues or evidence that would be presented at such a hearing. The attorney-in-fact appealed.

The Second District Court of Appeal affirmed. First, the trial court could compel the attorney-in-fact to provide an accounting, since he acted as a fiduciary and owed fiduciary duties to the conservatee's estate. Second, although the Probate Code limits the use of affidavits to uncontested proceedings, and this was in fact a contested proceeding, the attorney-in-fact waived his right to object to the consideration of affidavits because he failed to object on that basis at the trial court level. Third, the Second District held that the trial court did not abuse its discretion in denying the attorney-in-fact's request for an evidentiary hearing because the attorney-in-fact did not specify any factual issues he intended to address or the relevant evidence and witnesses he would produce at such a hearing.

TESTATOR'S NONSPECIFIC STATEMENT IN WILL THAT UNSPECIFIED PROPERTY HELD AS JOINT TENANCY WAS INTENDED AS COMMUNITY PROPERTY INSUFFICIENT TO SEVER JOINT TENANCY

Pearce v. Briggs (2021) 68 Cal.App.5th 466

The Fifth District Court of Appeal held there was insufficient evidence to support a conclusion that nonspecific statements in a will severed joint tenancy interests held by the testator and spouse.

An interest in property was held in joint tenancy between husband and wife. The wife's will included nonspecific language stating title to some property was held as a convenience or through inadvertence by myself and my husband and may be held of record in the form of joint tenancy, but that all such property is in fact intended to be our community property. The wife's successors asked the trial court to interpret the will to be both a will and separately a severance of the joint tenancy effective upon execution. The trial court found there was an inconsistency in this argument because if conversion from joint tenancy occurred upon the will's execution, then the executed document was irrevocable, but the document is also a will. Wills may be revoked at any time pursuant to Probate...