Probate: Common Fund Recovery Comes To The Rescue!

 

Adversarial Beneficiary Losing the Fight May Be Held Responsible for Winner’s Attorney’s Fees.

     Family feuds can be bitter, as the next case demonstrates. They also can result in being saddled with attorney’s fees depending how the trial court rules, given that some equitable doctrines like the common fund doctrine are very broad and pliable in nature.

     Gay v. Dunbar, Case No. A125421 (1^st Dist., Div. 1 June 29, 2010) (unpublished) involved a bitter struggle with sharply conflicting trial testimony over what a mother intended when she transferred the bulk of her assets into joint ownership with one child shortly before she died, but had a will and had seemed to indicate to others that she wanted assets divided between all three children.

     Son contested controlling daughter’s asset claims and was successful, with the trial court finding that controlling daughter’s testimony lacked credibility. The trial court also awarded son one-half of his attorney’s fees under the common fund doctrine, assessed against his other sister (who did participate in the litigation).

     The award was affirmed because the common fund doctrine did justify the aggrieved sister being held responsible for her brother’s probate litigation attorney’s fees. Given that son’s result actually enriched her position as to estate assets and that his sister retained her own counsel, it was only equitable that some of son’s fees—the ones resulting in the successful three-way split judgment—be reimbursed. (Kaplan v. Industrial Indem. Co., 79 Cal.App.3d 700, 712-713 (1978); Melendres v. City of Los Angeles, 45 Cal.App.3d 267, 275 (1975).)