September 25, 2013

Beneficiary Notification - Prob C § 16061.7

An issue when litigating a matter is timeliness. Sometimes a litigant can be premature while other times the litigant can be tardy. It is rarity though for a person to be both too early and too late in the same matter. Amazingly, such was the case of a litigant named Edward Bridgeman who wanted to challenge the validity of amendments to his father's trust.  Bridgeman v. Allen, CA Court of Appeal, 2013    

Henry and Kathleen Bridgeman created a revocable trust, naming themselves as co-trustees and their son Edward Bridgeman as beneficiary. Following Kathleen's death, Henry became sole trustee. "In 2004, Henry was diagnosed with dementia and possible Alzheimer's disease. In February or March of 2005, Donna Allen began taking care of Henry. In March 2005, Henry signed an amendment to the Trust, naming Allen as the sole beneficiary and successor trustee. Henry also appointed Allen as his attorney in fact on a durable power of attorney and advanced health care directive."

Edward filed a petition to invalidate this amendment. However, his petition was dismissed because he lacked standing as the trust was still revocable. The trial court's ruling noted that the dismissal did not prohibit a future filing by Edward.

In July 2011, Henry passed away and Beverly Brito, having replaced Ms. Allen who had been removed as trustee, served notice to Edward per Prob C § 16061.7. This notice contained the phrase, as required by California law, "you may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you." Prob C § 16061.7. Edward, who was living out of state, receive this notice in July 2011.

On November 17, 2011, more than 120 days after notice was given, Edward sought relief to have his claim not be barred by the statute of limitations. Edward's attorney made a clerical error so the filing was actually not filed until until November 21, 2011. The trial court denied his claim as it was not within the 120-day window. On appeal, Edward argued that since he was an out-of-state resident, an extra 10 days should apply to the statute of limitations. CCP § 1013.

The Court of Appeal rejected this argument because it found that CCP § 1013 is the default rule and the probate code had a specific rule for providing notice. Thus, in terms of the statute of limitations, Prob C § 16061.7 was controlling, CCP § 1013 was not. In the words of opinion "Read together, the plain language of these statutes provide that an action to contest the trust must be filed within 120 days from the date the notification by the trustee is served (§ 16061.8), service may be by mail (§ 1215, subd. (a)), and mailing is complete and may not be extended when the notice is "deposited in the mail." (§ 1215, subd. (e).)"

Ultimately, Edward's claim was rejected as he had not timely filed within the applicable statute of limitations. His deadline to file was November 8, 2011 and he had filed on November 21, 2011. Thus Edward was surprisingly too early and too late with his filings in the same case.