Tag: estate

What should you do if you have received a copy of a trust, a will, a deed, a power of attorney, account or other estate planning or transfer document – first consider whether it expresses the signer’s true wishes

You may have wondered what you should do when you first receive a copy of a trust or other estate planning or transfer document – well . . . as often, it depends on the specific facts and circumstances but here could be a plausible short answer – this and the following are not legal requirements, but they can be human factors and some could be possible:

  • Read the document.
  • Are its wording and provisions clear and understandable?
  • Does it cover all significant scenarios?
  • Are any of its wording or provisions contradictory?
  • Does it correctly express the signer’s true wishes?
  • Do you believe that the signer understood the wording and provisions? Do you understand the wording and provisions?
  • Is there evidence of forgery, fraud or deceit, undue influence, misrepresentation, concealment, omission, elder or dependent adult abuse, inducement by undue persuasion, dependency or reliance, or lack of legal capacity for the signer to legally and validly sign the document? You may also be required to consider legal presumptions and burdens of proof.
  • Is there evidence of a mistake in the document or that the document was signed under a circumstance of mistake or mistaken belief?

And the list is longer. You get the point that whether a document is valid, and whether select wording or provisions in the document are legally valid is determined by the facts and circumstance (the evidence), and the law including presumptions and burdens of proof. What you do in that circumstance depends on your options and on your authority, rights and duties or responsibilities. But you should consult with an attorney.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Are you seeing more personality disorders in litigation – yes, I can tell you that I am . . .

The DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) classifies 10 primary personality disorders into three Clusters based on shared symptoms – and yes, I am seeing more of these disorders in personalities and relationships in litigation.

I have done litigation, trials, and mediation for a long time, but whether it is simply timing or a long-term trend, since 2019 I have had and seen more cases and situations where an opposing party wasn’t simply presenting aggressive legal advocacy for their position but exhibited a pervasive lack of empathy, need to be control, need to win or to be the winner, or need to be seen as the person who is right and the winner, lying (gaslighting, fraud and deceit – including by omission, obfuscation, hiding, or selectively using, spinning or twisting or misrepresenting facts, the situation, information, documents and evidence), bullying, undue influence, excessive or wrongful persuasion, unreasonable delay tactics, the gambler, theft and stealing, the thief, working for or concocting “gotcha” moments, or a pervasive lack of ability to reasonably evaluate or acknowledge the weaknesses in their side and that the other sides also have strengths. And correspondingly, they cannot allow the other person to have success, or to be right, or to win, or to prove them wrong, or to appear so.

I have also provided below a copy of my undue influence eBook, a link to a discussion about abuse of process, and my personality and relationship scale.

The personality disorders that I see most often in litigation are Cluster B disorders, but they tend to be strong Cluster B disorders – in other words, we are not simply talking about aggressive legal advocacy. Unfortunately, through their strategies and tactics such a party’s position can seem correct or plausible to an outside viewer. It often takes considerable time and effort to disprove their position – it is easy to make several short or one- or two-sentence untrue arguments or positions or allegations – it takes considerably greater effort to then disprove the untruths. Of course, the intent of the wrongdoing party is to prevail, even through what might be an unlawful abuse of process – I have found that the only way to defeat the wrongdoing party is to effectively present the truth, fight against the wrongdoing party and not give in, and show as many as possible of the wrongdoing party’s untruths, falsities and fallacies. You might in the end sufficiently convince the wrongdoing party that she or he has significant weakness and might lose, but you cannot count on that happening and you do need to prepare for trial and have the resolve that the disputes will go to trial.  

The following is a summary of the DSM-5 Clusters and personality (and relationship) disorders.

Cluster A personality disorders (odd or eccentric) –

Paranoid – Pervasive distrust and suspicion of others.

Schizoid – Detachment from social relationships and a restricted range of emotional expression.

Schizotypal – Acute discomfort with close relationships, and cognitive or perceptual distortions and eccentricities.

Cluster B personality disorders (dramatic, emotional, erratic, disregard, or lack of empathy) –

Antisocial – A pervasive pattern of disregard for and violation of the rights of others. 

Borderline – Instability in interpersonal relationships, self-image, and affects, and marked impulsivity. 

Histrionic – Excessive emotionality and attention-seeking.

Narcissistic – Grandiosity, a need for admiration, and a lack of empathy.

Cluster C personality disorders (anxious or fearful) –

Avoidant – A pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation.

Dependent – A pervasive and excessive need to be taken care of that leads to submissive and clinging behavior and fears of separation.

Obsessive-compulsive – A pervasive preoccupation with orderliness, perfectionism, and control.

The following is my personality and relationship scale. As the scale moves to the right the personality or relationship becomes more troubling, dysfunctional and damaging to other people – you need to protect yourself, be prudent out there, and avoid or get out of or stay away from some personalities and relationships:

The following is a copy of my eBook How Undue Influence Can Disrupt an Estate Plan:

Undue Influence in Estate Planning eBook David Tate, Esq. final emailable June 17 2025 V6-smDownload

The following is a link to my post discussing the increasing use of litigation for an unlawful abuse of process: https://tateattorney.com/2025/09/15/abuse-of-process-i-am-seeing-more-cases-and-litigation-that-at-least-suggest-that-one-of-the-parties-is-using-the-litigation-for-an-unlawful-abuse-of-process/

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Who gets the dog?

Who gets the dog? See the below scan of a November 12, remote/virtual program by the San Diego Bar Association. Very heated trust, estate and probate disputes often involve personal property – I have represented clients in disputes over the dog or cat and other pets, the tools, the guns, computers and software, furniture, dishes, jewelry, and a longer list of personal property. Sometimes the beneficiaries can get themselves to be somewhat organized and considerate, but sometimes it is a post-death rush to get in there first and to take, take, take, or in other cases the item was gifted prior to death. I handle disputes and litigation and contentious administrations – but you can reduce disputes and litigation by going to an estate planning attorney who will help you put your wishes into writing, and perhaps even a pet trust.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Is It A Mediation – You Need To Know – Video – David W. Tate, Esq.

The following is my personality and relationship scale. As the scale moves to the right the personality or relationship becomes more troubling, dysfunctional and damaging to other people – you need to protect yourself, be prudent out there, and avoid or get out of or stay away from some personalities and relationships:

The same personality or personalities that existed prior to the litigation also exist or tend to exist in the litigation, although litigation can bring out and exacerbate personality traits, qualities or characteristics, and even dysfunction.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, duties, rights, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, duties, rights, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Video – Upcoming discussions that I am working on – David W. Tate, Esq. – September 12, 2025

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, duties, rights, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, duties, rights, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Goebner v. Superior Court – in Probate Court the timing for bringing a demurrer is determined under Probate Code provisions not under the Code of Civil Procedure

The following is a brief discussion about the recent holding in Goebner v. Superior Court (2025) 110 Cal. App. 5th 1105.

In relevant part, the Court in Goebner held that the timing for the filing of a demurrer in a probate court case is governed by the California Probate Code provisions for the bringing of a response or objection to the petition and is not governed by the California Code of Civil Procedure.

The holding is important not only to the particular case in question but also for attorneys who practice in the Probate Court. This has been an issue that I have run into in my cases many times. For example, in response to a petition a demurrer might be filed in which the respondent argues that the petition is in some manner defective or fails to state a claim. Some Judges in Probate Court are receptive to the filing of a demurrer, some Judges in Probate Court are not receptive to the filing of a demurrer, and as addressed in Goebner, in the Probate Court there can be questions whether Probate Code rules or rules of civil procedure apply.

In Goebner a demurrer was filed just two days before the hearing. Under the Probate Code a response or objection to a petition can be filed in writing at the time of the initial hearing and also can be made orally at the initial hearing. But under the rules of Civil Procedure a response or objection to the complaint is due 30 days after service of the complaint on the party.

In Goebner the Probate trial court held that the demurrer was filed too late. The Court of Appeal overruled, holding that under the Probate Code a responsive objection such as a demurrer can be brought as late as at the initial hearing. Note however, although permissible, if at all possible, I do not recommend waiting until the day of the hearing to file or bring a demurrer to the petition – instead, it is better to file a written demurrer upon available time prior to the initial hearing.

Although not the primary issue, the holding in Goebner also is relevant as it confirms that demurrer can be brought in response to and against a petition that is brought in the Probate Court, and that responses and objections in Probate Court can be made according the Probate Court procedures just prior to and even at the initial hearing (although, again, in my view, if possible it is better practice to try to not wait so long).

As the pleadings (i.e., the petition in a Probate Court case, or the complaint in a civil action) set the scope and boundaries of the relevant claims and issues to be resolved in the case, I do find it useful in appropriate circumstances to file a demurrer to try to ensure that the claims made are sufficient pleaded and are not vague or ambiguous.

The following quotes are some of the relevant discussions from the holding in Goebner:

  • Section 1000 provides, in relevant part, “Except to the extent that [the Probate Code] provides applicable rules, the rules of practice applicable to civil actions … apply to, and constitute the rules of practice” in proceedings under the Probate Code. (§ 1000, subd. (a).) This is a rule of default — that is, the Probate Code “adopts the civil practice rules only where special rules are not prescribed.”
  • Under the plain language of the Probate Code, it “does provide specially applicable rules” that address the timing for filing a response or objection to a petition. (citations omitted)
  • Within that chapter is section 1043, providing “[a]n interested person may appear and make a response or objection in writing at or before the hearing.” (§ 1043, subd. (a), italics added.) Similarly, interested persons “may appear and make a response or objection orally at the hearing.” (Id., subd. (b), italics added.) The statute underscores that oral objections may be made initially at the hearing by noting that the “court in its discretion” may “grant a continuance for the purpose of allowing a response or objection to be made in writing.” (Ibid.)
  • While the Probate Code does not expressly define “objection[s]” to include demurrers, we conclude that interpretation is appropriate. Pursuant to section 1000 we look to the Code of Civil Procedure (§ 1000, subd. (a).) The Code of Civil Procedure recognizes that a demurrer is a form of an objection to a petition or complaint. (Code Civ. Proc., §430.30, subd. (a) [a “ground for objection to a complaint, cross-complaint or answer” “may be taken by a demurrer to the pleading”]; see also id. §430.10 [party “may object, by demurrer” on enumerated grounds] . . .. (citations omitted)
  • Indeed, Code of Civil Procedure part 2, title 6, chapter 3, article 1, which includes these provisions, is titled “Objections to Pleadings.” Reading these Probate Code and Code of Civil Procedure statutes together, an interested party may file a demurrer to a petition under the Probate Code “at or before the hearing.” (citations omitted) The Probate Code further addresses concerns that a party may present a demurrer at a hearing — thus placing the petitioner at a disadvantage — by allowing a court to “continue or postpone any hearing, from time to time, in the interest of justice.”1 (§ 1045.) The deadline in the Code of Civil Procedure to respond and object within 30 days after a complaint is served is inapposite.

David W. Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, duties, rights, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

What are the 3 primary personalities and relationship ranges that I see in litigation and mediation?

What are the 3 primary personalities and relationship ranges that I see in litigation and mediation? (1) a strong advocate for their position or view, although they might be incorrect, but more often a reasonable thought-out position, generally good minded, generally trustworthy but verify; (2) the contra of (1), self-absorbed, only their viewpoint, gaslighting, secretive, deceitful, controlling and possessive, but not necessarily absolutely entrenched in their position and not necessarily hopeless for resolution and working together; and (3) to the dark side of (2) including evil, possessive, controlling, lying, mean, and possibly physical or emotionally hurtful and damaging.

Three (1, 2, 3) primary personalities and relationship ranges that I see in litigation and mediation:

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.

Business litigation and internal business and co-ownership disputes, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, and risk Management.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong; and mediator services.

Mediator services and dispute resolution (evaluative and facilitative).

Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

Business, breach of contract/commercial, owner, shareholder, investor, etc.

D&O, board, audit and governance committee, accountant and CPA related.

Other: workplace and employment, environmental, trade secret.

Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.