Probate: Beneficiary Winning Undue Influence Challenge To Adverse Trust Amendment Entitled To Appellate Fees Under Trust’s “No Contest” Expense Clause

Lower Court’s Denial of Winning Beneficiary’s Appellate Fees Reversed In This Appeal.

            One beneficiary in Key v. Tyler, Case No. B283979 (2d Dist., Div. 2 April 19, 2019) (published) successfully challenged a disinheriting, adverse trust amendment as being the product of undue influence by the trustee, who was also a trust beneficiary. Winning beneficiary also was successful in obtaining affirmance of this ruling in a prior appeal by trustee. However, when winner petitioned to enforce the trust’s “no contest” clause against trustee/beneficiary and to obtain attorney’s fees for prevailing on appeal, the probate court granted a SLAPP motion to the “no contest” enforcement petition and denied appellate fees to winning beneficiary in the prior proceedings.

            The 2/2 DCA reversed both orders. With respect to the denial of fees, the appellate court found a fee entitlement basis for an award of appellate fees to winning beneficiary based upon language in the “no contest” clause providing that “[e]xpenses to resist any contest or attack [of] any nature upon any provision of this Trust shall be paid from the Trust Estate as expenses of administration.”