Discovery in Probate Litigation

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Expanding Discovery Rights in Probate Litigation

I felt stupid. As the entire 9th grade class looked on, my buddy Mark opened the "Master Lock." As if that wasn’t enough, he had even typed the combination on a piece of paper and Scotch Taped it to the bottom of the lock. Our mathematics teacher had the lock passed back to me, I dutifully spun the dial using the newly discovered combination...the insult was complete. One week earlier, I had announced to our instructor that, as there existed only a limited number of possible permutations, that “I” could unlock any Master lock. Unfortunately, I hadn’t realized that the possible “number” of combinations on a Master lock is in fact 64,000 (40 x 40 x 40). My 14 year-old impatience caused me to soon abandon the enterprise and my friend had asked if he “could try it.” His triumphant resolution of the puzzle that next Monday left me deflated. In my mind’s eye, I imagined Mark spending the weekend spinning that dial until a three digit grouping worked. Having achieved that at which I had failed, he now reaped the accolades of a coronation as our classes’ math whiz.

"Not All Siblings Share the Combination"

Years later, and well into our professional careers, I asked Mark how long it had taken him. “I don’t know,” he confided, “I gave up after a while and my big brother sat there with it while watching TV. He figured it out.” Imagine how I felt...

But not all siblings share the combination to the palace gate. Trust and probate litigation ensues. Paulino Ponce died on August 3, 2002...he had 8 children. Shortly thereafter, his youngest daughter, business manager, and trustee suspected three of her brothers in the disappearance of over $100,000 from daddy’s pockets...and from his safe. One of the brothers initiated probate litigation against her, alleging breach of trust. After that probate claim settled and a new trustee was appointed, the daughter objected to the new trustee’s accounting and proposed final distribution of trust assets. Her objections alleged the bedside theft of funds. In an effort to prove her probate litigation claims, the daughter argued that she intended to conduct probate litigation discovery for the purpose of proving that father’s monies had been absconded, and wrongfully converted. She served her brother with a demand for his financial records. Because she had never filed a Probate Code section 850 petition to recover assets, and because the brother was not a judgment debtor, the probate court denied daughter’s request, noting that her mere objections to the trustee’s accounting were insufficient to trigger her discovery rights against a fellow beneficiary.

In late 2007, the California Court of Appeal reversed and expanded the rights of parties to conduct discovery in probate litigation. The court held that Daughter’s failure to file a Probate Code section 850 petition was not fatal to her right to probate litigation discovery because, rather than seeking a transfer of property, she was only seeking to reduce her brothers’ share of the final distribution. Noting “a corollary” to the Fothmann vs. Boyer decision, which had previously held that a beneficiary could not conduct discovery for the mere purpose of probate litigation and “determining” if objections were proper, the court ruled that a trust beneficiary who has objected is entitled to conduct discovery “relevant to those objections.” Once a beneficiary objects, the court ruled, an issue of fact is created; here, the issue was whether or not the three brothers had helped themselves to the contents of daddy’s safe. Scotch Tape...and brothers...and combinations.

Mota vs. Superior Court of Orange County (2007) 156 Cal. App.4th 351.


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