Probate: Sibling Correctly Allowed Recovery Of Fees For Prevailing In Undue Influence Proceeding Under Probate Code Section 859

Bad Faith For Purposes Of Fee-Shifting Statute Can Be Based On Circumstantial Evidence.

            Probate courts, at essence, are courts of equity.  As such, in California, there are many Probate Code sections which allow litigants recovery of attorney’s fees and expenses.  Probate Code section 859 is one of those fee-shifting provisions, allowing recoupment of fees in undue influence cases where the opposition has acted in bad faith.

            In Estate of Antos, Case No. G054116 (4^th Dist., Div. 3 Nov. 8, 201) (unpublished), son sibling Joseph received attorney’s fees under section 859 against sister sibling after she was removed as trustee and the lower court made undue influence determinations against her as far as a second trust amendment relating to her father’s estate.  That determination was affirmed on appeal.  Sister argued that bad faith was not shown, but circumstantial evidence and inferences can carry the day (as many times in probate cases) especially given suspicious circumstances relating to the execution of a second trust amendment by father. 

            Justice Ikola authored the decision for a 3-0 panel.