Neither the Conditions of the Trust Nor Fee-Shifting Statute Were Met Here.
In our March 24, 2010 post, we discussed the fee-shifting parameters of Probate Code section 17211(b) in the context of Leader v. Cords, 182 Cal.App.4th 1588 (2010). Leader has been discussed in other posts, namely, our March 24, 2010 post on Leach (unpublished) and June 15, 2010 post on Soria (published). It has surfaced, yet again, in the next unpublished decision we examine.
Scichilone v. Duguay, Case No. D057435 (4th Dist., Div. 1 May 23, 2011) (unpublished) involved stepdaughters challenging the accounting from stepfather under a trust after his wife died. The trial court awarded stepdaughters attorney’s fees of $8,500 under Probate Code section 17211(b) because of its perception that stepfather had been dilatory in a trust accounting, although they did get the information. Stepfather appealed.
Reversed as a result of stepfather’s appeal.
The main flaw was that an express trust provision exempted stepfather, as a settlor trustee, from providing an accounting to the beneficiary daughters. Beyond that, section 17211(b) requisites were not met: (1) daughters never sought a formal accounting, with such a formal accounting contest being a statutory predicate to fee recovery; (2) stepfather did provide an accounting such that stepdaughters did not substantially contest it; and (3) daughters never proved the bad faith element of the fee-shifting statute.