No-Contest Clauses may not be effective unless properly inserted in most recent trust or will instrument

A no-contest clause or in terrorem clause, should be carefully drafted and implemented in estate planning to avoid potentially catastrophic consequences.  Such a clause can punish a person from filing a pleading in any court and result in disinheritance.  

Some people and some estate planners may insert a no-contest clause in the initial trust or will instrument and then years later draft an amendment to a trust or a codicil to a will or even a new instrument.  However, if the subsequent instrument does not include a no-contest clause or is not drafted properly to reference a prior no-contest clause then it may not be protected.  Also, if the original instrument does not properly refer to subsequent instrument(s) then such instrument(s) may not be protected.  This can be very problematic as a no-contest clause only applies to "protected instruments" under Probate Code section 21310.  Again, many no-contest clauses do not apply to future instruments (as such are not contemplated) and many amendments or subsequent wills may revoke prior instruments in their entirety. 

Even in situations where prior instruments are referenced as being given full effect, no-contest clauses have generally been narrowly construed and found to be ineffective.  The recent Court of Appeals case in Aviles v. Swearingen (2017) 2d Civil No. B281420, provides a prime example.  In that case a restatement and amendment of a trust incorporated terms of a prior trust (which had a no-contest clause) but did not specifically include a new no-contest clause, nor did it cite specifically to incorporating the old no-contest clause.  

If you find yourself in a litigation situation or potential dispute, it is best to consult with experienced counsel in such matters, such as the attorneys at the Demiris Law Firm to help guide you.

The Demiris Law Firm, P.C. obtains Temporary Conservatorship After Evidentiary Hearing

On Wednesday, November 15, 2017, Constance Figuers, attorney at the Demiris Law Firm was successful at an evidentiary hearing in the Superior Court of California, Alameda County in obtaining a temporary conservatorship of the person for an elderly lady in need.  After an all-day trial and after multiple witnesses were called to testify, the Court granted the temporary conservatorship of the person and appointed a private professional fiduciary.  The litigation was intense as it involved the suspension of powers of attorney involving the elderly lady's husband.

The Demiris Law Firm obtains Elder Abuse TRO with move-out orders and dog custody order

On September 1, 2017, the Demiris Law Firm successfully petitioned and obtained two temporary restraining orders involving the abuse of an elderly client.  The elderly client was threatened with bodily harm as well as the snatching of his dog by tenants at his own home.  The Demiris Law Firm was able to obtain immediate eviction orders as well as protective orders ensuring the custody of the client's pet dog.

Chris and Kosta move to the Demiris Law Firm P.C.

After many moons together, Chris Moore and Kosta Demiris are reorganizing the firm and moving offices.  They will now be part of the Demiris Law Firm PC and located at 700 Ygnacio Valley Road, Suite 140, Walnut Creek, CA 94596.

Many thanks to our friends, family, clients, and colleagues for all of your support throughout the years.

Recent CA case confirms that a trustee's attorney-client correspondence generally stays with the office of trustee

In a recent case in the First Appellate District, Division Three, Court of Appeals, Fiduciary Trust International of California v. Conrad Lee Klein et. al (2017), the Court held that correspondence between an attorney and trustee-client is generally not privileged when it comes to being provided to a successor trustee.  In other words, the office of trustee generally holds the privilege and when a new trustee takes the office, then that person is entitled to all attorney-client correspondence by the predecessor trustee except in very limited circumstances.  Some of those limited situations could potentially exist when the trustee pays for his/her own separate counsel, out of personal funds (not trust funds), and takes steps to preserve the confidentiality of the communications.  

This ruling is in line with prior rulings by the California Court of Appeals.  This case directly cites the seminal case for trustee attorney-client privilege, Moeller v. Superior Court (1997) 16 Cal.4th 1124.

Demiris & Moore prevails for client in conservatorship trial

On March 22, 2017, in Contra Costa County Superior Court Case No. MSP16-01258, Demiris & Moore obtained a decision appointing their client as conservator of the person and estate following an afternoon trial in a contested conservatorship case.  The trial involved a dispute amongst siblings over who should be conservator of their mother.  Attorney Konstantine "Kosta" Demiris handled the case for the firm.

Konstantine “Kosta” Demiris to speak at NAELA Conference

On Saturday, March 4, 2017, Konstantine “Kosta” Demiris will speak at the National Academy of Elder Law Attorneys (“NAELA”) Chapter California Summit in Oakland, CA.  His topic will be “Drafting Trusts to Avoid Litigation.”

 

Some of the other topics and speakers include:

 

·         Ruth Phelps, who will be presenting, "Trust Protectors: Bodyguard or Bully?– an overview of when and how to utilize them.”

 

·         Kevin Urbatsch, who will be presenting, “Top Mistakes to Avoid When Drafting and Administering Special Needs Trusts.”

 

Other topics include: "How to get your client into a SNF", "Working Backwards: How to Avoid a Malpractice Claim", "Getting the Most Out of IHSS," and "What Effect will the New Administration have on Medicare and Medi-Cal."

 

Other speakers will include Kathleen Day-Seiter, Jim Hyuck, Kevin Prindiville and more.

Recent CA appellate case holds that all attorney-client confidential communications are presumed privileged

In a recent California 4th Appellate District case, DP Pham LLC v. C. Tucker Cheadle as administrator, etc., the Court of Appeals dealt with a matter involving attorney-client privilege.

The Court of Appeals made clear that “the attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit.”  The Appellate Court went on to determine that the privilege, as a matter of law, attaches to all confidential communications that exist between an attorney and a client no matter whether the information communicated is in fact privileged.   Accordingly, it is neither necessary nor appropriate to review a communication between a client and lawyer to determine whether the attorney-client privilege protects it.  The fact that a client and attorney engage in confidential communications makes the communications privileged. 

The Court of Appeals held that once a party makes a prima facie showing that a confidential communication was made between a client and attorney, then it is presumed the privilege applies.  The burden to the opponent to establish waiver, an exception, or that the privilege does not apply and the opponent cannot rely upon the content of the communication to prove its case.