Plaintiff Seeking To Probate New Will Was Decedent’s Long-Time Attorney Friend Who Drafted And Benefited From New Will.
A person challenging the validity of a will on the grounds of undue influence or lack of testamentary capacity bears the burden of proof under Probate Code § 8252(a). This burden shifts, under Probate Code § 21380, when a presumption of undue influence arises from the challenger’s showing that the person accused of undue influence (1) had a confidential relationship with the testator; (2) actively participated in procuring the instrument’s preparation or execution; and (3) would benefit unduly by the testamentary instrument. (Rice v. Clark (2002) 28 Cal.4th 89, 97.) When this happens, the proponent of the will has the burden of proving the absence of undue influence. If he/she cannot, Probate Code § 21380(d) mandates the beneficiary to bear all costs of the proceeding, including reasonable attorney’s fees.
This is what happened in Laguatan v. Pablo, Case Nos. A152115, A152250 (1st Dist., Div. 3 Sept. 30, 2019) (unpublished). Here, decedent executed a holographic will that left most of his estate to his two cousins. Seven months later, he was admitted to a hospital suffering sepsis, pneumonia, heart failure, senility, and other ailments. During this time, his long-time friend, a California-licensed immigration attorney, had him execute a new will that the attorney had actively procured. The new will revoked the holographic will, reduced the gifts to the cousins, named attorney friend as the sole executor, and provided attorney friend the residue of the estate – after payment of debts and distribution of specific gifts – to “manage and dispose of . . . according to guidelines relating to Christian humanitarian charitable principles which we both agree on and accede to.” The new will provided no oversight for management and disposal of the residual estate assets.
When attorney friend sought to probate the new will, the cousins successfully challenged on the grounds of undue influence and lack of testamentary capacity, and successfully moved to have the holographic will admitted to probate. Cousins’ successful challenge triggered fees and costs under § 21380(d), and the trial court awarded them with $27,427 in costs, which included $24,755.60 in expert costs, and $180,285.25 in fees after a $7,950 reduction for some duplication. The fees award included fees on fees in the amount of $8,245.
Attorney friend appealed the trial court’s judgment denying his petition to probate the new will and the post-judgment award of fees and costs, but the 1/3 DCA affirmed – finding the trial court had properly applied the presumption under section 21380 and had not abused its discretion in the post-judgment fees/costs awards.
Attorney friend’s arguments that the fees were excessive with too many hours billed, too many timekeepers, inflated rates for the attorneys and paralegals, vague time entries, non-compensable clerical work, and block billing went nowhere as he failed to meet his burden to point to the specific items he challenged, with sufficient argument and citations to the record. The 1/3 DCA agreed with the trial court’s findings that fees were driven up by Friend’s own actions – meritless summary judgment motion and evidentiary objections, two trial continuances, and refusal to enter stipulations of undisputed facts. Cousins had submitted detailed billing records and declarations in support of their initial request for fees and subsequent request for fees on fees. As to attorney friend’s argument that the costs award was excessive and that the expert billed for two trial days, even though testifying on only one day, the 1/3 DCA found no abuse of discretion. The expert fees were driven up by attorney friend’s actions – requesting a continuance on the day the expert had arrived prepared to testify. The continuance caused the expert to prepare for and attend a second trial day and testify when trial resumed over four months later.
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