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Listman v. Listman2/5/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This case involves a contest between brothers, Bruce Listman and respondent Steven Listman, regarding the revocable trust and the will purportedly executed by their mother, Elaine Sullivan, now deceased. On appeal, Bruce challenges the court's judgment granting the respondent's petition to cancel Mrs. Sullivan's trust and denying Bruce's petition for probate of Mrs. Sullivan's will on the ground that she lacked testamentary capacity.
Appellant also attacks the order after judgment awarding attorney's fees pursuant to Welfare and Institutions Code section 15657. This provision is part of the Elder Abuse and Dependent Adult Civil Protection Act (ยง 15600 et seq.).
We affirm the judgment but reverse the order after judgment awarding attorney's fees.
A. Procedural History
On January 22, 1999, Steven Listman filed a petition to cancel his mother's revocable trust, to quiet title, and for an accounting and damages. The grounds for canceling the trust were (1) lack of testamentary capacity, (2) undue influence by his brother Bruce, and (3) fraud by his brother Bruce.
On March 1, 1999, Bruce Listman filed an objection to the petition for cancellation of the trust and, on March 18, 1999, he filed a petition for probate of his mother's will and a petition requesting authority to administer her estate. On April 12, 1999, Steven Listman filed a petition to contest the probate of the will. The matters were tried together.
The judgment, filed July 10, 2000, (1) granted the petition contesting the will and directed the decedent's estate to pass to heirs under the laws of intestate succession, (2) granted the petition to cancel Mrs. Sullivan's revocable trust on grounds she lacked the requisite mental capacity to execute it, and (3) determined that Bruce Listman held the trust assets in trust for the persons entitled to distribution of Mrs. Sullivan's estate.
Steven Listman filed a motion for attorney's fees requesting an award of attorney's fees and costs pursuant to section 15657. By order dated October 4, 2000, the superior court granted respondent's motion for attorney's fees pursuant to section 15657 and awarded fees in the amount $117,000. The court found neglect as defined by section 15610.57: "The evidence produced at trial supports a finding that Bruce, the decedent's caretaker, indeed, was negligent in the provision of her care. The home smelled of urine and was filthy. Too, in an effort to preserve the assets of the estate, Bruce failed to secure adequate medical assistance for the decedent. His conduct, was at a minimum, reckless."
B. Probate Code Section 811
Probate Code section 811, subdivision (a), requires a judicial determination that a person lacks the capacity to execute wills or trusts to be supported by evidence of a deficit of at least one of the statutorily delineated mental functions and evidence of a correlation between the deficits and the decision or acts in question. The court found: "Petitioner Steve Listman has established by a preponderance of the evidence, indeed, beyond a reasonable doubt that Elaine Sullivan did not have testamentary capacity to execute the will and trust on February 13, 1997. . . . n that date she was suffering from severe dementia, which was likely the final stage of Alzheimers. . . . n that date, Ms.
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