Mcle Self-study Article Roadblocks on the Road to Probate Trials

• Publication year: 2022

MCLE SELF-STUDY ARTICLE ROADBLOCKS ON THE ROAD TO PROBATE TRIALS

Written by Matthew Owens, Esq.^* and Golnaz Yazdchi, Esq.^**

I. INTRODUCTION

Without a solid grasp of pre-trial procedure in probate court governing the way in which trials are set and under what circumstances, the probate court can feel like the wild west with traps for the unwary. While it is true the probate court has wide discretion concerning the manner in which it manages and sets cases for trial, there is an established body of case law that provides direction and some level of certainty on when and how probate trials will be conducted. Some recent cases have placed additional roadblocks on the road to probate trials—for example, expanding the probate court's power to compel mediation and forfeit the rights of those who fail to participate—but that road is still navigable. The goal of this article is to explain the impact of those new cases, as well as pre-trial procedures generally in contested probate matters, so the reader will feel comfortable steering a contested probate matter to trial and overcoming any procedural hurdles along the way.

The authors hope that this article will be useful to estate planners who want to try cases, civil litigation attorneys who want to try probate cases, and experienced trust and estate litigators who want an update on recent case law impacting probate trials.

II. ENTITLEMENT TO TRIAL IN PROBATE COURT

A. The Court Will Set a Trial upon Demand in a Case with Disputed Facts

1. Right to a Trial in Probate Court

Although the probate court has its own method of handling case management in contested matters, the rules of evidence and civil procedure apply with full force and effect all the way through trial, so long as those rules do not conflict with a more specific provision of the Probate Code.¹ When matters within the purview of the Probate Code are contested, the probate court is typically required to hold a trial to adjudicate the dispute.

When at least one party demands a trial, the probate court is likely to set a trial date, after allowing time for discovery and pre-trial motions. The trial must be set in advance with proper notice to all parties.² If it is a long-cause trial that will require multiple days, then, depending on the county, the trial might be assigned to a different department for trial, but that trial judge will still sit as a probate judge when adjudicating the case.

2. More than Just a Hearing

A trial in probate court is more than just a hearing on the regular probate calendar.³ All of the standard civil rules surrounding pre-trial filings apply, including in limine motions, exhibit lists, witness lists, and trial briefs. Typically, live testimony will be offered in lieu of declarations, and exhibits must be formally offered and admitted into evidence.

The probate court is required to "hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders."⁴ When an objection is asserted, the probate court generally may not decide a contested matter based on the pleadings.⁵ The probate court may only consider declarations and verified pleadings as evidence in uncontested probate proceedings.⁶ When a petition is contested and the facts are not stipulated, each allegation in a verified petition and each fact set forth in a supporting declaration must be established by competent evidence.⁷ There are several key

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cases that have analyzed the types of evidence the probate court may consider at trial.

In Estate of Fraysher (1956) 47 Cal.2d 131, a dispute over an estate accounting, the probate court considered declarations as evidence without requiring a trial with live witness testimony.⁸ It only did so, however, because the parties did not object and instead adopted that informal means of adjudicating the accounting at issue in the "relatively small" estate.⁹ In affirming the probate court's ruling, the California Supreme Court held that, although declarations and verified pleadings normally may not be considered as evidence in contested probate matters, the parties waived their right to complain about the informal process on appeal since they adopted it and participated in it before the probate court.¹⁰

In Estate of Duncan (1969) 1 Cal.App.3d 212, the probate court decided a will contest without requiring that any evidence be formally introduced at the hearing.¹¹ The parties submitted verified pleadings and argument of counsel, but not live testimony or exhibits.¹² It was a contested hearing because there were competing petitions—one for letters of administration and one for probate of a holographic will.¹³ In reversing the probate court's order denying the petition for letters of administration, the appellate court held that because it was a contested hearing the probate court was not permitted to decide the case based on verified pleadings and argument alone.¹⁴ The case was remanded so the probate court could hold a trial.¹⁵

In Estate of Wallace (1977) 74 Cal.App.3d 196, a dispute over a petition for family allowance from the decedent's estate, the probate court barred one party from introducing a declaration as evidence.¹⁶ In affirming the probate court's ruling on appeal, the appellate court noted that the rules of civil procedure generally apply in probate proceedings.¹⁷ The appellant who had attempted to use the declaration as evidence unsuccessfully argued that the declaration should have been considered because declarations may be considered as evidence at hearings on motions.¹⁸ The appellate court rejected that argument, however, because the contested probate dispute was not a motion and in probate court declarations can only be used in uncontested proceedings.¹⁹

In Evangelho v. Presoto (1998) 67 Cal.App.4th 615, a trust accounting dispute, the probate court decided the case without taking any live testimony from witnesses and without requiring that any exhibits be formally introduced into evidence.²⁰ In affirming the probate court's ruling, the appellate court acknowledged that pleadings typically may not be considered as evidence in contested probate matters, but it found that the probate court's ruling was proper nonetheless because no one objected to the informal procedure used.²¹ The parties had submitted sworn statements in the form of verified pleadings and declarations, and they submitted the matter for decision to the probate court following argument of counsel.²² By adopting the probate court's informal procedure, the parties waived their right to challenge that procedure on appeal.²³

In Estate of Bennett (2008) 163 Cal.App.4th 1303, a dispute over competing claims to entitlement to a decedent's estate, the probate court granted a motion to set aside a settlement agreement based on declarations submitted without a trial.²⁴ The nonmoving party objected in the probate court, contending that a trial was necessary given the contested nature of the case.²⁵ The moving party's position was that because it was a motion, as opposed to a petition, the rules of civil procedure permitting the use of declarations in connection with motions—Code of Civil Procedure section 2009—meant that declarations could be used without the need for a trial.²⁶ The appellate court reversed because, in this instance, there was a conflict between the Probate Code and the rules applicable to civil actions.²⁷ Probate Code section 1000 provides, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions . . . apply to, and constitute the rules of practice in, proceedings under this code."²⁸ In the context of this case, the Probate Code did "provide[] applicable rules."²⁹ Specifically, the Probate Code provides a rule that limits the use of declarations to "uncontested proceeding[s]."³⁰ Since the case was a contested proceeding, and a trial demand had been timely made, declarations could not be considered as evidence, even though the matter presented for decision was presented by motion.³¹ In other words, the Probate Code's express statute limiting the use of declarations to uncontested proceedings trumped the civil rule permitting litigants to use declarations in support of motions. Parties therefore cannot circumvent the Probate Code's prohibition against the use of declarations in contested proceedings by framing the filing as a motion instead of a petition.

In Estate of Lensch (2009) 177 Cal.App.4th 667, another dispute over competing claims to entitlement to a decedent's estate, the probate court denied a party's request for a trial where the party made the request three times at the hearing in question.³² In reversing the ruling, the appellate court explained that the Probate Code anticipates that a party may submit a matter based on a verified petition alone, but as soon as it becomes contested the probate court is required to hold a trial on the contested issue.³³

In sum, absent waiver or stipulation, the probate court must hold a trial when the matter is contested. The trial will be

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more than just a regular hearing because it will require live testimony and introduction of exhibits into evidence.

3. Lawsuits with Both Equitable and Legal Claims

There is no right to a jury trial for most matters brought under the Probate Code.³⁴ Most trials in probate court therefore are bench trials tried before a judge. Some common exceptions are contested conservatorship petitions and elder abuse claims, both of which can be tried before a jury upon proper demand. With respect to mixed cases—those with both equitable and legal claims—there are some procedural complications that counsel will need to be aware of and navigate.

A common example of a mixed case containing both equitable and legal claims is a trust contest petition brought on undue influence grounds that also contains an elder abuse claim. These are common occurrences because undue influence is a form of committing financial elder...