L.A. Times / Don Bartletti ~ Reading Cinemas Movie Theatre

The Los Angeles Times is reporting on a family estate dispute and court drama thatis affecting the Los Angeles-based movie theater chain Reading InternationalInc. which has dozens of cinemas around the world, major real estate holdings, and a nearly 200-year history with roots in the railroad and coal business. The adult three children of Reading’s late chief executive, James J. Cotter Sr., are waging a battle for control of the company.

This case is more complicated than the typical estate dispute in that it involves a public company but it has some allegations that are common to many of them such as whether the father had capacity to amend the trust, breach of fiduciary duty and undue influence.

The Los Angeles Times reported that the issues began after James J. Cotter Sr., a Los Angeles businessman, resigned as CEO and chairman in August 2014 because of declining health, leaving son James Cotter Jr. in charge. Cotter Sr. died in September 2014 at age 76. Shortly thereafter, his two daughters went to court, alleging their brother improperly convinced their father to add him to a trust that would control the voting shares of the company.

The article notes that Ellen and Margaret Cotter’s court papers claimed that James Cotter Jr. unduly influenced their father while he was in the hospital after suffering a fall in his home. The daughters said their father lacked “the knowledge and understanding necessary” to make such financial decisions. The daughters contend that after their dad was admitted to the hospital, their brother convinced an estate attorney to draft an amendment to the trust that made him a co-trustee. They allege he lied to Margaret by saying the changes were made based on videos he took of their father expressing his wishes. 

Probate and Trust Administration Top Posts

 The other day I was looking through all the stats on the blog, to see the most popular posts.  In first place is What happens when someone dies without a will?  with 1550 views.  If you liked that one, check the  2013 related post: What happens when someone dies without a will? Does joint tenancy save the day? The rest of the top five posts of all time on the blog are:

2. Recent California Decision On Breach Of Trust & Trustee Fiduciary Duties   with 1010 views.

3. Recent California Decision Highlights Trustee's Breach Of Duties And Misconduct When Trustee Is Also A Beneficiary  with 961 views

4. What Is Undue Influence In California Probate Courts? with 740 views, and 

5. Potential Estate Tax Implications Of J.D. Salinger's Death  with 490 views.

We feel that there is an overall theme developing here, since the most viewed posts are probably connected with what people are searching for on the Internet and what brings them to the blog.  

As a technical matter, the permanent change to a $5,000,000 exemption per person means that for many people, estate taxes are no longer an issue which would drive estate planning.  It is a huge difference to not so long ago when the exemption was only $600,000.

However, family relationships cannot be legislated, and the conflicts which develop after death are very much unaffected by tax laws.  If one child thinks that their sibling unduly influenced Mom, well, that is simply an issue which will always be around.

We see our practice in disputed matters steadily expanding, so these stats are not surprising to us. 

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

Litigation in the Probate Courts Part II, How Long Does it Take?

In the first installment of this series of posts, we talked about the general aspects of probate litigation, and what to expect if you find yourself involved in a case.  In this post I will talk about how long each phase of a case may take, and what a litigant can expect along the way.  Often, the timing of a case is as important as the substance of the claims.

A case breaks down into the following segments:

A. Pleading, or the making of allegations by one side and the corresponding denial of allegations by the other side.  Pleading alone can take several months.  In a Probate case, it is rare for one party to file any sort of motion, the other party to receive it and object, and for the parties to both agree with the Court to move to the next stage in anything less than about four months, sometimes much longer.  The other factor is that in a Probate case there are often more than two sides.  Each beneficiary of an estate could have a different view of a matter.

B. Discovery, or additional fact finding.   Additional fact finding always takes time.  For example, let say that the matter at issue is a beneficiary demanding an accounting.  Well, the court may say "when can you have that accounting done?"  The party may respond "in three months."  Then the court orders it filed, and of course the other side gets time to examine it and have specific objections, which might take a couple of more months.  So now you could easily have taken a year.

C. Preliminary Orders, which are Orders from the Court to keep the case moving along.  There may be some preliminary orders along the way, but those could be expensive to get and are always time consuming.  To continue with the example above, a typical case may start with a beneficiary accusing the trustee of some act and asking that the trustee be removed.  However, if there has not been an accounting filed the court will want to see that first, and that may take a few months.

D.  A formal mediation. At this point a year or so may have gone by, and the parties are already growing tired.  At this point the Court will offer the parties a chance to mediate the matter before a private mediator.  Often, this is the point at which the case settles.  Mediation can be very helpful, since it is often in mediation that, for the first time, one side hears how the other side's arguments and their arguments are viewed by an unbiased third party.

E.  An Evidentiary Hearing.  Thiis is what most people consider "a trial" to be, or what they think of by "going to court."  Not only do the first four steps often take more than a year to complete, it now may take a year to get a hearing date on a matter that will take more than a couple of hours of evidence.  Two years with no resolution feels like a long time, and it is.

F.  Appeals, if any.  An actual appeal, with briefing schedule to the appellate court, could be another year.  Often, appeals are filed simply to create the possibility of additional settlement discussions.

As you can see, the rather extreme length of time it can take to obtain a court order is a factor in the dispute,  independent of the actual merits of the claim.  Time is a factor which simply must be discussed with the client, because not only is "time" an issue, but costs rise along with time.  There is no positive way to really spin this, but this is why most cases settle -- it would simply take too long and cost too much to achieve complete victory.

At Moravec, Varga & Mooney we have extensive experience with disputed matters and the various phases of a case.  We have found that it is a great help to a client to give them an honest appraisal of how long a case can actually take.  It can be an extremely bad thing if a lawyer is "too optimistic" about how quickly a client can get a case to a judge.  If the client does not understand the time and costs involved, the time and cost can simply overwhelm the merits of the case, which can be a disaster if the case is actually a good one.


Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The Los Angeles area office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

What Happens When Someone Dies Without a Will? Does Joint Tenancy Save the Day?

One of the features of Blogger is that you can see the list of the most popular posts on a blog.  Currently our number one post is "What happens when someone dies without a Will?"    It is easy to see why this would be a popular search, since it may well be true that a very large number of people die without a Will or a Trust, which is known as dying "intestate" (the technical legal term). 

The chap to the right looks very satisfied with himself.  He may have been thinking "I have my property sorted out and I did it all by myself!"  However, he may well have simply created a minefield for his heirs.

Our post from 2009 addressed the basic question of what happens in an intestate estate administration.  That post set forth the basic ways in which property can be transferred when someone dies without a Will or Trust: (I) by small estate declaration, (II) by "contract" or (III) through a probate proceeding.

In this post I will elaborate a bit on what by "contract" means.  We use "contract" to cover a wide range of non-probate transfers.  The most common may be the joint tenancy.   Joint tenancy means that title to a piece of property, either personal property, such as a bank account, or real property, is in the name of two or more people as joint tenants.  The long phrase is "joint tenants with right of survivorship" and what it simply means is that when any joint tenant dies, upon proof of death, the property passes to the other joint tenants.

Joint tenancy has always had one advantage going for it -- simplicity.   It is not a big deal to put a bank account into joint tenancy, you just fill out the appropriate form at the bank.  For real property, a deed is required, but these days many people attempt to fill out their own deed and often are successful.  When real property is purchased, the escrow company can simply put the title into joint tenancy at the request of the buyer.

However, joint tenancy has a number of disadvantages, which can run the gamut from annoying to serious:

1. It assumes order of death.   For estate planning purposes, properly drafted documents take into account variables in who dies first.  At best, if a parent puts a child on as a joint tenant and the child dies first, it is a waste of effort.  At worst, if the child is put on only one deed with the intent of that particular property going to that child, and ultimately to that child's children or spouse, and the child dies, then the property reverts to the parent, and does not go to the child's heirs.

2. It provides no protection against disability.  One of the benefits of a revocable trust is that it applies if the settlor (or creator) of the trust becomes disabled.   Putting property in joint tenancy does not have any management upside -- both joint tenants must executed any documents of sale or financing.  So if a parent puts a property in joint tenancy and becomes incompetent, that parent could not execute any documents with respect to that property, and problems could easily arise.

3. No creditor protection on first death. Another issue with a simple joint tenancy between husband and wife is that the change in tax laws has perhaps led some to ignore other, non tax issues.  For example, a couple who are in no danger of amassing an estate worth $10 million could have all of their assets in joint tenancy, and thus if one dies all goes to the survivor.  However, this does not deal with: creditors of the surviving spouse, everything from potential remarriage to medical bills.   With a trust, half of the couple's net worth would have been protected.  Plus, upon the death of both parents a probate would be necessary.

4. It is easy to forget.  A joint tenancy is so simple that its easy for a person to forget they even have set one up.  We have had many instances where one of the contingencies discussed in this memo occurs and the client, or the client's children, are surprised to learn of  a joint tenancy property or account set up years before.

5. It does not verify actual ownership interest.  This is a real nuts and bolts problem.  For example, take refinancing or sales of property.  Once a person is a joint tenant, they have to sign off on all of the documents relating to that property.   A second point that comes up is whether, when a couple puts a child on a deed as a joint tenant, if they intended a specific gift.  The IRS generally says "no" but the County Assessor, who is looking to re-assess property, may say "yes."  In California, the Proposition 13 property taxation system always needs to be considered.

The other, most common way an interest in property can pass is by "beneficiary designation" which I will cover in another post.

For now, the main thing to consider is that estate planning is all about "planning" for various contingencies.  Many clients are unaware of all the possible contingencies which might affect them.  That is where we can help, since we have experience with just those contingencies a client might miss.

When it comes to sorting out an estate of a person who dies intestate, many of the same contingencies a client should have considered while alive are triggered.   This is where our expertise again is of great help to clients, because just as much planning can occur after a person dies as before.

The majority of the work in our practice, in terms of hours spent, is always on post death administration, be it sorting out an intestate estate or resolving a dispute.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a complimentary 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

Seven Questions I Ask Clients When Mediating Estate And Family Property Conflicts

I have noticed an increase in the number of estates, trusts, and probate-related disputes over the last few years. Part of the increase may be our aging baby boomer population and part of it may be due to the economic downturn. In some of our cases, we use mediation to resolve these disputes -- entire cases or isolated issues. 

For example, in cases in which a residence is the sole or primary asset, mediation with regard to a possible expedited sale of the house with the proceeds to be put in escrow pending resolution of the lawsuit can benefit the parties since empty houses deteriorate rapidly and are difficult to insure. Such a sale can also serve as a reality check for the parties who may be improperly estimating the fair market value of the house. 

Why is mediation used even when each side is sure that he or she is absolutely right or the opposing party seems impossible? Here are 5 reasons: First, it can help save litigation expenses and prevent the estate from being dissipated by legal fees. Due to court cutbacks, it takes longer to obtain hearings and cases can last for years. Second, it maintains our clients' confidentiality and keeps fights out of the public eye. In litigation, court filings are public where mediation can allow the records to be confidential. Third, it can preserve family relationships or prevent family relationships from deteriorating further.Mediation can address underlying family conflicts and take into account emotions and family dynamics in considering legal obligations and rights. 

Fourth, it allows us to obtain certainty and ensure tax savings which may not happen in litigation when a judge is deciding the case. Fifth, it allows us to use creative solutions that may not be typical legal remedies that a court can apply. In mediation we can air and acknowledge complicated emotional issues that were preventing early settlement and we can develop flexible solutions to accommodate different interests. 

Here are some questions I ask clients when we are considering mediation. This is based on cases where we have agreed to mediate conflicts in order to preserve family wealth and promote family relationships. 

• Is the conflict ripe for mediation and are the parties motivated? Mediation should occur when planning and decision making cannot continue because of unresolved conflict and the parties understand that opportunities are being lost or extra expenses and legal fees are being incurred. Mediation usually happens after we have hit a wall in the settlement process where having an experienced third party mediator can make a difference. Mediation can occur before, during, or after court proceedings.

• What are the goals for mediation? I help clients identify the goals in specific terms. Do you want the best possible monetary outcome, family peace, specific property, preservation of assets or other goals? 

• Who should participate in the mediation?  Probate cases usually involve a high degree of emotionality and numerous parties. There may be multiple decision makers (spouses, children, advisors, and significant others). If someone can veto the agreement or is necessary for it to work, consider whether that person should be at the mediation.

• Are you and the lawyers prepared?  Thorough preparation is often the key to success. It is important to have researched the underlying facts and the law with respect to the outstanding issues before going to mediation. Sometimes the key to successful resolution may lie in creative use of the tax laws. I also spend time identifying the strengths and weaknesses of both sides' positions. I usually prepare a confidential Settlement Brief providing the mediator with necessary information and background information. I will also highlight my clients' strengths and give the mediator the other sides' weaknesses. I summarize the history of prior settlement attempts and offers. I often provide the mediator with copies of relevant cases and/or statutes. Sometimes I will present expert or financial reports to help the mediator understand the issues. 

• Who should be the mediator? Mediators have different styles and approaches. Will the parties respect a former probate judge? Do the personalities and situation require an authoritative mediator to evaluates alternatives and suggests outcomes? Or would the parties respond better to a more facilitative mediator who helps the parties work out their own agreement?

• Do we have a negotiation plan? In order to be assured of getting what my client wants most, I help prioritize my client's interests, prepare a general strategy and consider which concessions might help achieve the identified goals. It sometimes takes more than 1 session to reach agreements and my client needs to be prepared to be patient and keep emotions in check and not simply issue ultimatums. Some mediations are marathons and not sprints. 

• Can we bring our proposed settlement agreement to the mediation? If I have cases where clients know what specific wording or stipulations are needed, I will bring a draft agreement, release or settlement on a memory device or laptop to the mediation to be revised as needed. Careful drafting is required for a mediated agreement to be enforceable and it is best to obtain the signatures the day of the mediation to avoid future disputes or someone changing their mind. 

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221. The firm website is www.moravecslaw.com

The firm has two offices and consultations and meetings can be held at either office. There is ample free parking adjacent to the firm's offices.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.
The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.

What Is Undue Influence In California Probate Courts?

As a law firm that focuses on probate and estate and trust litigation, we are seeing an increase in the number of allegations of undue influence in our cases. What do you do if you think a loved one is the victim of undue influence? Or what do you do if you are accused of exercising undue influence? Or what can you do to help prevent allegations of undue influence in the future?

Claims of undue influence can be difficult to understand and prove, both because of the lack of a definition in the Probate Code and because it occurs behind closed doors without witnesses. Increasingly, though, probate courts have staff such as investigators or visitors who go out and interview proposed conservatees and determine their circumstances, including the presence of apparent undue influence. Probate courts are also receiving more information from community practitioners such as Adult Protective Services social workers, physicians, and hospital discharge planners.

In California, the definition of undue influence is contained in California Civil Code §1575. This statute was enacted in 1872, a date which calls into question its application in the 21st century. Thus, probate judges in California lack probate statutory support when they must consider imposing a conservatorship on an elder who is allegedly being victimized by someone using undue influence. Additionally, we see that cases are not always handled consistently.

Complicating the picture is traditional thinking that mental capacity and undue influence are intrinsically linked. In other words, undue influence occurs only if there are deficits in mental functioning. Even though California law is clear that soundness of mind and body does not imply immunity from undue influence, the perception that undue influence cannot exist without mental deficits persists. Thus, if your loved one does not have mental deficits it may be more difficult to prove undue influence.

The first and most commonly invoked statute regarding undue influence is California Civil Code §1575, which was enacted in 1872 and is commonly cited as a definition of undue influence. The elements are:

1. The use, by one in whom a confidence is reposed by another, or who holds real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another’s weakness of mind; and

3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Pressure of some type is always a part of undue influence situations. In a seminal California case, Odorizzi v Bloomfield, undue influence was used against a person who was not an elder and had mental capacity. The court cited factors that indicated excessive pressure:

1. Discussion of the transaction at an unusual or inappropriate time;

2. Consummation of the transaction in an unusual place;

3. Insistent demand that the business be finished at once;

4. Extreme emphasis on the untoward consequences of the delay;

5. Use of multiple persuaders by the dominant side against a servient party; and

6. Absence of third-party advisors

More recent law is contained in California Welfare and Institutions Code §15610.30 et seq., which address financial abuse of an elder or dependent adult. In 2009, that section and others in the Welfare and Institutions Code were amended. The term u"ndue influence" was added. Section 15610.30(3) of the California Welfare and Institutions Code now states that financial abuse of an elder or dependent adult occurs when a person or entity does any of the

following:

“Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriate, obtaining, or retaining, real, or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Probate Code §812, or by undue influence, as defined in Civil Code §1575, or both.”

Thus, undue influence is legally related to financial abuse. Section 15657.6 of the Welfare and Institutions Code—which references an elder lacking capacity (pursuant to California Probate Code §812) or being of unsound mind, but not entirely without understanding—states that a person or entity must return real or personal property if the elder or the elder’s representative demands it. Failure to do so in a timely fashion subjects the perpetrator to the same remedies available for financial abuse, namely, damages, attorney’s fees, and costs.

Although the California Probate Code does not contain a definition of undue influence, it does contain specific information as to determining deficits in mental functions in §811 and the capacity to make decisions in §812.

What do you do with this information regarding undue influence? If you or your loved one are in the planning stage, it may be wise to take steps to avoid such allegations in the future by involving an experienced attorney to guide you through the process. If you suspect undue influence, before you jump to allegations consult an attorney so you can make an objective assessment of whether you can prove your case. Probation litigation can be costly and a case should be evaluated by an objective attorney before you decide on a course of action. As our population ages, we can expect to see an increase in undue influence allegations in probate court.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

Probate Battle Involving Heirs Of Book Author And Undue Influence Allegations Settles After Two Years And On Eve Of Trial

A notable probate battle in Vermont has settled just before trial was to start after a 2½-year-old fight among the heirs of children's book author and illustrator Tasha Tudor. The estate was worth $2 million. Ms. Tudor, 92, died in 2008 of complications from a series of strokes. The settlement agreement was confidential and not filed with the court.
The fight was over the legitimacy of the will and the key issue was whether Ms. Tudor was unduly influenced when she rewrote it to give nearly everything to her oldest son.
Although this case is not in California, it highlights trends we see in cases here in California. First, given the cost of probate litigation and the risks involved, most cases settle before trial. With a $2 million estate, a significant amount of the estate can be consumed in legal fees over a two-year period. It is important to analyze legal expenses and costs as part of the business side of evaluating whether it makes economic sense to proceed to trial.

Second, there is an increase in probate litigation given the economic and housing crisis with some heirs not willing to settle for less and with real estate prices being depressed. Third, when wills or trusts are changed to leave out other children -- it increases the likelihood of probate litigation unless the changes are well documented and planned.

Ms. Tudor, who quit school after the eighth grade, won a worldwide following with her whimsical watercolors and drawings in "Pumpkin Moonshine," ''Corgiville Fair," and "Little Women," among nearly 100 children's books she illustrated or wrote. Ms. Tudor celebrated old-fashioned family life at home, becoming known for her anachronistic lifestyle — often going barefoot, wearing vintage dresses or making linen for her own clothing and living in a replica of an 18th-century New England farmhouse built by her sons, in Marlboro, Vt.

Her 2001 will requested that her cremated remains be buried with her beloved predeceased Corgis and the ashes of her pet rooster. It left her copyrights and most of her assets to sons Seth Tudor and Thomas Tudor and Seth's son, Winslow Tudor, giving only $1,000 each to daughters Bethany Tudor and Efner Tudor Holmes.

But an amended 2002 version cut out Thomas, save for an antique highboy, because of his "estrangement" from his mother. Thomas contended his brother wielded undue influence over their mother and that there are suspicious circumstances surrounding the changes in the will.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210.

He focuses his practice on Probate Litigation, Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law. He represents clients throughout Southern California and his offices are conveniently located for clients in the Los Angeles, Santa Barbara, Orange, Riverside and San Bernardino Counties.

With respect to probate, Hank Moravec has over 20 years' experience as a probate and probate litigation attorney practicing in Los Angeles and is available should you need legal advice regarding your own or a family member's situation.

The firm website is http://www.moravecslaw.com/.
The Los Angeles area office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

Florida Heiress Leaves Bulk Of Estate To Caretakers And Dogs & Leaves Son A Fraction. Result? Probate Litigation & Undue Influence Allegations.

When Gail Posner of Miami, a daughter of the corporate takeover businessman Victor Posner, died in March 2010 at age 67 from cancer, a cute Chihuahua named Conchita and two other dogs inherited the right to live in her Miami Beach mansion and have a $3 million trust fund. Ms. Posner's caretakers and staff (7 bodyguards, housekeepers and other personal aides) were left a total of $26 million under her will, and some also were allowed to live, rent-free, in the mansion to care for the dogs.

Ms. Posner's only surviving adult son Brent Carr was left $1 million. He filed a lawsuit in probate court last week in Miami-Dade County seeking damages and a petition to revoke probate of will. A copy of the lawsuit has been posted by the Wall Street Journal.

The lawsuit names the trustee Mellon Private Trust and the caretakers and staff as defendants. Mr. Carr alleges among other things that there was undue influence by her caretakers. It makes for a sad story of what can happen after someone passes away. The Wall Street Journal's article on this lawsuit points out that Mr. Carr had his share of problems in the past.

For those that are interested in what a trust document looks like for a large estate, the Wall Street Journal also posted online a copy of Gail Posner's Revocable Trust. This trust was from 2008 almost two years before she died. The son's lawsuit contends that the changes to a trust from 1965 were the result of undue influence.

In order to prove undue influence, a person must show that there is a vulnerability to undue influence, the opportunity to influence, and the likelihood of the influencer to commit the act. Ms. Posner was only 67 and died of cancer. There are allegations of mental illness and prescription drug abuse in the son's lawsuit. The cost of defending this lawsuit could certainly cost the estate more than the $1 million left to Mr. Carr and obtaining a settlement when everyone knows the cost of litigation may be the goal of Mr. Carr and his attorneys.

It will be up to the courts to decide if Gail Posner knew what she was doing when she signed that will and no one who stood to gain from the will exerted "undue influence" on her. This will be a factual determination and good estate planning can help avoid subsequent charges of undue influence. Large and small estates alike need to be aware of this possibility and do their best to minimize probate litigation.

In a prior post, I wrote an article about six methods to reduce estate and probate litigation. For example, it would not be surprising if the attorneys had a video made of Gail Posner signing the new will or independent third-party witnesses on the issue of why the son was left $1 million and Ms. Posner's intent in amending her trust and will.

It will probably take a year or more for this case to be resolved. Further, since 98 percent of probate litigation cases settle, I would predict an out-of-court settlement in this matter unless Mr. Carr is deemed to be unreasonable or his settlement demands are considered to be much greater than his ability to recover at trial.

Posted by Henry (Hank) J. Morevec III. With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The office is located in San Marino, California, a suburb of Los Angeles in the San Gabriel area located 20 minutes from downtown Los Angeles. The firm represents clients throughout California and its attorneys appears in probate court throughout Southern California (Pasadena probate attorney, Los Angeles probate attorney, Santa Monica probate attorney, Pomona probate attorney, Torrance probate attorney, Long Beach probate attorney, Van Nuys probate attorney, Santa Barbara probate attorney, Orange County probate attorney, Riverside probate attorney, San Bernardino probate attorney).

California Court Rules Daughter Cannot Annul Father Richard Pryor's Marriage Or Set Aside Bequests To Stepmother After His Death

On September 28, 2009, the California Court of Appeal issued two companion decisions relating to the estate of Grammy award-winning comedian and actor Richard Pryor.

The court rejected an attempt by Pryor's eldest daughter Elizabeth to annul her father’s marriage to stepmother Jennifer Pryor and void certain gifts and bequests to her stepmother. The daughter's goal was to invalidate Pryor's most recent will and reinstate an earlier will in which he split his fortune between his six children. The Pryor probate litigation has been pending for more than four years.

Richard Pryor married Jennifer Pryor in 1981 and they divorced one year later. Shortly thereafter, Richard Pryor was diagnosed with multiple sclerosis and his condition began to deteriorate. His ex-wife Jennifer Pryor became Richard Pryor’s care custodian in 1994. At that time, there was an earlier will in place in which he split his fortune between his six children.

In 2001, Richard and Jennifer Pryor were remarried pursuant to a confidential marriage license. Elizabeth Pryor apparently did not learn of this marriage until after her father died of a heart attack in 2005. By this time -- both before and after his remarriage -- Richard Pryor had revised his estate plan to leave substantial assets to Jennifer Pryor rather than his six children.

After his death, daughter Elizabeth prior filed two actions. First, styling herself as successor in interest to her father, she petitioned to annul the marriage under Family Code Sec. 2211(d) on the grounds of fraud. She claimed her father's signature on the marriage certificate was forged.

Second, she filed a probate proceeding seeking to set aside various gifts, bequests, and transfers of property or assets made by her father to Jennifer between 1994 and 2005. Legally, she was seeking to use Probate Code Section 21350 to presumptively disqualify Jennifer, who was a care custodian, from receiving a donative transfer from a dependent or elder adult. Elizabeth argued that her stepmother Jennifer may not invoke the spousal exception to this presumption because the marriage was the product of undue influence and fraud.

Elizabeth did not win on either ground in the family law or probate courts. The same judge presided over both matters in the superior court. She then appealed.

On appeal, Elizabeth lost both cases. In the family law matter which is the subject of a companion appeal, Pryor v. Pryor (No. B207398), the Court of Appeal affirmed the denial of Elizabeth's petition to annul the 2001 marriage between Jennifer and Richard on the ground of fraud.

In the probate matter, the Court of Appeal declined to recognize an exception to the rule under Probate Code Section 21350 that a spouse may receive a donative transfer from a dependent or elder adult for marriages allegedly obtained by fraud and undue influence. The appellate court found no support in the language of section 21351, subdivision (a), or in the legislative history, which would make the spousal exception to the presumption of invalidity unavailable to a spouse who allegedly persuaded the transferor to marry through undue influence or fraud.

A copy of Estate of Pryor, CA Court of Appeal, 2nd Appellate District, Div. 4, Case No. B207402 can be found at:
http://www.courtinfo.ca.gov/opinions/documents/B207402.PDF

Attorney Comments: First, this case brings to light the conflict that can exist between children of a prior marriage and a stepparent. Second, the failure to disclose to the children the marriage and the changes to the will or estate plan can also increase the likelihood of probate litigation.

Third, there are ways to document that there is no incapacity or fraud. For example, doctors can be used to assess the capacity of a person to make a will or trust. In some cases, there can be limited ability to speak (which happens in some advanced muscular sclerosis cases).

Because most trouble arises from disappointed potential beneficiaries, a doctor (such as a psychiatrist or neurologist specializing in geriatrics) as part of his examination should ask whether the testator has ever made a will before and who is now going to be excluded and why. Doctors and attorneys must understand the legal tests for testamentary capacity.

Attorneys can also document these issues and show their client's intent and capacity in that they understand their prior wills, their assets and the proposed disposition. Videotaping may be used to help prevent accusations of forgeries at a later date. In other words, good planning can help minimize the risks of probate litigation after the death of a loved one and provide strong evidence in the event of a challenge.

Posted by Henry Moravec, III. Any questions or comments should be directed to: hm@moravecslaw.com or (626) 793-3210. The firm website is http://www.moravecslaw.com/