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Baker Manock & Jensen v. Superior Court of Fresno County

July 22, 2009

BAKER MANOCK & JENSEN, PETITIONER,
v.
THE SUPERIOR COURT OF FRESNO COUNTY, RESPONDENT;
MARVIN R. SALWASSER, AS ADMINISTRATOR, ETC., REAL PARTY IN INTEREST.



ORIGINAL PROCEEDING; petition for writ of mandate. Debra J. Kazanjian, Judge. (Super. Ct. No. 07CEPR00104).

The opinion of the court was delivered by: Vartabedian, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

This is a petition seeking relief by writ of mandate after respondent court entered an order disqualifying petitioner Baker Manock & Jensen (hereafter the law firm) from serving as attorneys for any party in the probate action pending before respondent. We will grant the petition and direct respondent to vacate the orders in question.*fn1

Facts and Procedural History

The law firm drafted a will duly executed by Lillian Salwasser in 1999. Lillian died on September 24, 2006, and the will was admitted to probate. (Because many of the persons relevant to this proceeding are members of the Salwasser family, we will refer to those persons by their given names for clarity and convenience.) Two of Lillian‟s four sons, George and Gary, were named in the will as co-executors of the will. George and Gary were duly appointed executors and were issued letters testamentary with full authority to administer the estate under the Independent Administration of Estates Act (Prob. Code, § 10400 et seq.).

George was represented by the law firm. Gary was represented by separate counsel, Michael L. Farley.

Lillian‟s will left certain property to her husband, Walter, and left the remainder of her estate to a trust created at the same time she executed the will. George and Gary were named successor trustees of the trust; they and their families were the sole beneficiaries of the trust. Lillian‟s other two sons, Denis and Marvin, were omitted from the will and the trust.

Soon after the proceeding for probate of Lillian‟s will was filed, Walter died. His will was admitted to probate and Denis was appointed executor. After serving as executor for about six months, Denis also died. Marvin, real party in interest in the present proceeding, was appointed administrator of Walter‟s estate.

At the time of her death, Lillian had an interest in 22 bank, brokerage, and investment accounts. One of these accounts stood in her name, one in Walter‟s name, and the other 20 were in various forms of joint account with Walter. In addition, there were issues concerning real property transferred by Lillian to the trust during her lifetime and issues concerning ownership of certain improvements to real estate.

Lillian‟s will has a no contest clause. That clause provides: "If any beneficiary under this Will in any manner, directly or indirectly, contests this Will or any of its provisions in any legal proceeding that is designed to thwart my wishes as expressed in this Will, any share or interest in my estate given to that contesting beneficiary under this Will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me without issue."

In order to begin to seek resolution of the questions concerning ownership of the accounts, the real property, and the improvements, George and Gary filed separate applications under Probate Code section 21320.*fn2 These applications sought a declaration that proposed petitions to determine these questions of ownership would not violate the no contest clause of the will. The court granted the applications, finding that the proposed petitions would not violate the no contest clause of the will.

Subsequently, Marvin, as Walter‟s executor, filed an application for a determination that petitions he proposed to file would not violate the no contest clause of Lillian‟s will. The first proposed petition sought a determination of entitlement to distribution of assets of Lillian‟s estate.*fn3 It claimed Lillian‟s will gave her share of all community property to Walter.*fn4 In addition, the petition sought a declaration that Marvin was entitled to modify Walter‟s retirement plan to confirm to Walter all of Lillian‟s interest in any such plan.

The second petition Marvin proposed to file was under Probate Code section 850. Acting on such a petition, the court can order property transferred to or from the administrator of an estate. (See Prob. Code, § 856.) The proposed petition sought possession of all banks accounts to which Walter and Lillian had joint title and Walter‟s half of any community property in certain other accounts and assets. Thus, this proposed petition sought a determination that these assets did not belong to the estate at all. ...


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