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Listman v. Listman2/5/2002
ial brief and then "reserved" at the beginning of trial, the evidence at trial of abuse by his brother was overwhelming, and the court made findings supporting attorney's fees. Probate Code section 259, added in 1998 (Stats.1998, ch. 935, § 4, p. 5407), restricts inheritance in certain cases involving abuse or neglect of a elder or dependent adult by deeming the person to have predeceased the decedent to the extent statutorily provided. (Prob. Code, § 259, subd. (a).) We decline to reach the issue whether attorney's fees might be awarded pursuant to section 15657 in a will or trust contest case where a person is deemed to have predeceased the decedent pursuant to Probate Code section 259, subdivision (a), because the appellate record in this case does not show that that court resolved any claim under that section.
Here, the court in adjudicating the petitions did not find, by clear and convincing evidence, that Bruce Listman was liable for physical abuse, neglect, or fiduciary abuse and that he was guilty of recklessness, oppression, fraud, or malice in the commission of such misconduct. Therefore, attorney's fees were not available under section 15657. (See Code Civ. Proc., § 1021.)
The July 10, 2000 judgment is affirmed. The October 4, 2000 order after judgment awarding attorney's fees is reversed. The parties shall bear their own costs on appeal.
WE CONCUR:
Bamattre-Manoukian, acting p.J.
WUNDERLICH, J.
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