4580 East Thousand Oaks Boulevard, Suite 250 Westlake Village, CA 91362

California Probate and Trust Legal Summary – Spring 2021

Catanese & Wells, a Law Corporation provides a quarterly newsletter to the California probate and trust professional community including lawyers, accountants, professional fiduciaries, and insurance providers. 

In this issue of the Probate and Trust Legal Summary the focus will be on the authority of the court to act “in equity” when matters arise related to wills and trusts. When the court acts in equity it is far different than when the court acts “at law.”

In probate and trust matters California trial judges (the court) sit “in equity.” That means that the court has broad discretion to fashion remedies and administer justice. The court may apply general equitable principles in applying the law and issuing orders. These equitable powers are limited to acts of the court related to will and trust enforcement and administration. See Estate of Kraus (2010) 184 Cal. App.103, 114. There is no right to a jury trial under California’s Probate Code except as otherwise provided by statute (i.e., California Elder Abuse statute). Cal. Prob. C. Section 825. 

A recent appellate case underscores the authority of a probate judge sitting in equity. In Breslin v. Breslin (decided 1/26/21) the Court of Appeal Second Appellate District, Division Six considered whether (a) a probate judge had the authority to order parties to a mediation and (b) if a party failed to attend the mediation was the party nonetheless bound by the outcome of the parties who did attend the mediation if a settlement between them occurred?

The Breslin appellate court ruled that the trial court had the authority to order parties to mediation and further that a party who had notice of the mediation who failed to attend and participate was bound by the results of the mediation. In other words, if the probate judge ordered the parties to mediation and all parties had notice of the order, if a party chose not to participate that party was bound by any settlement agreement between the parties who did participate in the mediation. The court cited a 2019 appellate case which it also decided in support of its decision – Smith v. Szeyller (2019) 31 Cal. App.5th 450. 

In Breslin the appellate court found that a trial court had the authority under the California Probate Code to order parties to mediation citing California Probate Code Section 17206. The court also found that a trial and a mediation were each “an essential part of the probate proceedings.” The court also said that an order of the trial court to a mediation would be “useless” if a party could ignore the order and later object to a settlement between the parties who actually attended and participated in the mediation. 

The Breslin appellate court also said that the trial judge sitting in equity could require a mediation as a condition to setting an “evidentiary” hearing (or trial). And, if a party failed to participate in the court ordered mediation they waived their right to a trial. 

The appellant in Breslin also raised many other arguments that the trial court acted beyond its authority by confirming the settlement reached in mediation (the trustee acted wrongfully etc.). In the end, the appellate court refused to consider any of the arguments because the appellant was notified of the mediation and the appellant failed to attend the mediation. 

What is the lesson to be learned from the Breslin case? If you are an attorney or a party and the probate judge orders a mediation in the case you must attend the mediation otherwise you may be barred from any recovery in the case should the other parties reach a settlement and the settlement excludes any distribution or award to you. 

For further guidance regarding the above, the reader is encouraged to contact the law offices of Catanese & Wells, A Law Corporation at www.cataneselaw.com or by telephone at (818) 707-0407.