Probate Code section 859 double damages may be punitive in nature but are not "punitive damages"

In the recent case of Hill v. Superior Court, the Court of Appeals held that the Probate Code section 859 provision that authorizes courts to award double damages are not punitive or exemplary damages as the term is defined by Code of Civil Procedure section 3294.   That Code of Civil Procedure section is a section that makes exceptions to awards against a decedent's successor-in-interest.  The Court of Appeal pointed out that each side had only one case on point to argue in support of each side's respective position.  The parties involved a petition by children who were co-executors against their stepfather for Probate Code section 859 damages.  They were arguing that the stepfather wrongfully and in bad faith concealed assets belonging to the decedent's estate.  The stepfather argued that CCP 3294 is an exception that bars double damages as "punitive damages."  At the trial court level the stepfather prevailed on his argument, but was overturned on appeal as the double damages were determined not to be "punitive damages."

For those who are not probate law practitioners, under Probate Code section 859, if a person dies and that person's executor, trustee, beneficiary, or heir was to wrongfully and in bad-faith take or conceal money from the person who died (or was to take or conceal money from that person's trust or estate), then Probate Code section 859 allows for a potential award of double damages, attorney's fees and costs.  This ruling made the distinction that such double damages could possibly be punitive in nature or may have a punitive effect but they are not "punitive damages" and thus do not fall within the CCP 3294 exception.  A full copy of the Court of Appeal decisions can be found by clicking on the link below:

Can a No-contest Clause in a California Trust affect a separate Will, Power of Attorney, or group of contracts and deeds? The answer may shock you - YES it can.


                Many people believe that a “no contest clause” is limited to the legal instrument that it is written into.  For example, if there is a trust and that trust has a “no contest clause,” then a person may believe that only the trust is affected by the “no contest clause.”  In reality other instruments, such as a will, powers of attorney, or even contracts may be affected by the “no contest clause” in the trust – and vice versa, depending on the language of the "no contest clause" and the other instrument or classes of instruments identified.

                Under California Trust Law a “no contest clause” is defined as a provision in an otherwise valid legal instrument that, if enforced, would penalize a beneficiary for filing a pleading in any court.  California Law in this instance defines a “pleading” as a petition, complaint, cross-complaint, objection, answer, response, or claim.  A “protected instrument” is defined in CA Trust Law as either 1) an instrument that contains the “no contest clause” or 2) an instrument that is in existence on the date that the instrument containing the “no contest clause” is executed and is expressly identified in the “no contest clause,” either individually or as part of an identifiable class of instruments, as being governed by the “no contest clause.”  In other words, a “no contest clause” contained in a trust, could just affect the trust, but if it identifies a separate instrument (will, power of attorney, contract) in existence on the date the trust is created, then it could affect the other instrument(s).  If the “no contest clause” refers to an “identifiable class of instruments” such as “estate planning documents” or “contracts” or “deeds” then it could likely also affect those identifiable classes of legal instruments.


Konstantine "Kosta" Demiris speaks at CCCBA Law Student Mixer at John F. Kennedy University College of Law

On August 20, 2015, Konstantine "Kosta" Demiris was invited by Eliza Gryko to speak at the Contra Costa County Bar Association ("CCCBA") Law Student Mixer at John F. Kennedy University College of Law in Pleasant Hill, CA.  Eliza Gryko is the co-section leader of the CCCBA's Student Section, in addition to being a registered nurse, professionally licensed California fiduciary, and 2016 JD candidate.

The topics discussed were networking and mentoring.  Kosta's speech focused on how networking and mentoring are necessary elements in the development of a lawyer.  He used real-life examples involving sports and, amongst other things, Steve Urkel and Laura Winslow.   Kosta discussed the need for law students who are aspiring lawyers to adapt to the legal world and reach out to fellow students, lawyers, and other professionals in all arenas.  He stressed the need to sacrifice and be willing to give, even when there doesn't appear to be any immediate reward in sight.  

Kosta's speech was part autobiographical, discussing his travails from working as a deputy county counsel and practicing an array of legal areas, to finding his niche and becoming a recognized member of the Contra Costa County legal community; a business partner of a Bay Area litigation firm handling will, trust, conservatorship and general civil litigation; and his service on various prestigious boards including the Elder Law Section, as President of the Barristers Section, and as a delegate representing the CCCBA in the Conference of California Bar Associations.

Kosta discussed his fortune to work along some of the great attorneys and Judges in Contra Costa County, well-respected members of the community, and hard-working people who have helped him by sharing something incredibly valuable and priceless - their own personal experiences.  Kosta's speech concluded with an acknowledgment of the wisdom of the famous Greek storyteller, fabulist, and slave, Aesop, who many revere today and hold in high esteem.  Kosta's speech followed that of Cole Peters, Esq., a personal injury and worker's compensation attorney who shared his personal experiences in transitioning from being a law student to a lawyer in private practice.

Konstantine “Kosta Demiris Obtains Court Order Finding Lost Holographic Will Valid in Estate Litigation Involving Will Contest by Sibling

Sacramento County Superior Court Case # 34-2013-00152632-PR-PW-FRC in re: the Estate of Barbara J. Heston

Walnut Creek estate lawyer and probate litigation lawyer Konstantine “Kosta” Demiris, represented Kevin Heston the executor named in Barbara J. Heston’s 1996 holographic will (the original holographic will was lost) in petition for probate of the lost holographic will.  Kevin’s brother, Paul Heston filed an objection to the validity of the will.  Paul contended that a 2010 typewritten will was the controlling will (or in legal parlance, the controlling “testamentary instrument”). 

Following extensive discovery and depositions that strongly established the 2010 typewritten will was not valid, Paul conceded the point (he waited until three-weeks before trial to do so).  Paul stipulated to the validity of the holographic will and admitted the 2010 will was invalid, which was made an order of the Court.  On January 5, 2015, Kevin was duly appointed by order of the Court as executor of his mother’s estate under the holographic will.  

Konstantine "Kosta" Demiris Successfully Obtains Court Order Invalidating Trust, Powers of Attorney, Advance Health Care Directive, and Monetary Settlement for Plaintiffs in Case Involving Elder Abuse

Sacramento County Superior Court Case #34-2013-00148491-PR-TR-FRC  Heston v. Heston/The matter of the Heston Trust

In this case, Walnut Creek trust lawyer and elder abuse litigation lawyer, Konstantine "Kosta" Demiris, represented the Plaintiffs, two of the surviving children of the deceased Barbara J. Heston, who filed suit against their brother Paul Heston and his wife Janet Heston.  After about two-years of elder abuse litigation, trust litigation, and litigation involving the purported durable power of attorney and advance health care directive of Barbara J. Heston, Plaintiffs prevailed by court order on July 15, 2015 invalidating the trust, general transfer of property to the trust, power of attorney, and advance health care directive, they also obtained a monetary settlement.

Factual Summary

Medical records and depositions of Barbara Heston’s treating physician and treating psychiatrist revealed that Barbara suffered from Alzheimer’s dementia, physiological changes to her brain, and was determined during the relevant periods before, during, and after execution of the purported trust and deed to real property to lack the required legal mental capacity to execute the legal documents and legal instruments.

The underlying civil complaint alleged elder abuse, including financial elder abuse, isolation, and abandonment.   In the trust petition, Plaintiffs petitioned the Court to invalidate Barbara J. Heston’s purported trust, general transfer of property to trust, and deed transfer of her home which disinherited her church, children, and all her grandchildren to give everything she owned to Paul.  The petitions to invalidate the probate power of attorney and advance health care directive alleged that the procurement of the power of attorney and advance health care directive were improper as Barbara lacked capacity and was unduly influenced to execute those instruments.

Konstantine "Kosta" Demiris Prevails on Will Dispute and Abatement

Konstantine “Kosta” Demiris from Demiris & Moore netted a victory for his client Margaret McGushin in a civil dispute involving a will contest over a New York Condo devised to her by her sister, Rose.  In the case of Estate of Rose G. McGushin, Plumas County Superior Court Case # GN PR13-00028, the Petitioner Andrew D. Smith, who was also the executor of the Decedent’s will, petitioned the Court to contest the express language in the will.  At issue were terms stating that a New York condominium was to be “passed on to Margaret” so long as she could manage “this responsibility” or if not Margaret then to Andrew Smith and if not Andrew, then to other named contingent beneficiaries. 

Andrew (Rose’s boyfriend) initially stated in writing that Margaret would inherit the property, then changed his mind and stated he would inherit the property because Margaret failed to manage the responsibility, then changed his mind again and petitioned as executor under the theory that the property should pass to no-one but rather by intestate succession claiming the language was vague and unenforceable.  (Ironically, this would still have the property go to Margaret, the sole surviving heir of Rose by way of intestacy).  The estate consisted of two real properties (one each to Andrew and Margaret) and sparse cash assets.  Andrew, who was provided another real property under the will, wished to escape paying the administrative costs of the estate because under the CA laws of abatement he would be responsible as a non-relative specific beneficiary for anything that the residue of the estate was unable to cover. 

Naturally, Margaret objected and claimed the language was clear and unambiguous; that Rose intended for the property to go to Margaret; and Andrew should pay for the costs of abatement.  The matter went to trial.  At trial, the Court upheld the language of the will as clear and unambiguous and held that the terms would be interpreted under their ordinary meaning under the Probate Code.  Andrew was held responsible for the costs of abatement as a non-relative with lower priority under the abatement statutes.