2018 Trust & Estate Symposium Program – Summary of Probate Law

Mina Sirkin, Probate Specialist attended the 2018 Trust & Estates Symposium on 9/21/18 where the latest in probate law matters where discussed.

Associate Justice, Maria Stratton discussed the Sanchez case, identifying the nuances of expert witness testimony in Will and Trust Contests.   David Coleman educated us about the Office of the Trustee and how attorney-client privilege changes between an individual and a trustee.   Post-Tax Reform was a big topic in Estate Planning for Clients of All Levels of Wealth and the impact of change on the conversation we have with our clients.

Hearsay Rule and its application in  People v. Sanchez:

Generally, any evidence of a statement make out of court other than by a witness testifying at a hearing is hearsay when it is offered to prove the truth of the matter stated.   Hearsay is inadmissible unless an exception applies.   Judge Stratton spent a good amount of time identifying the common exceptions to the hearsay rule applicable in probate and conservatorship cases.   Most interesting where Evidence Codes 1330 and Evidence Code 1340.  Evidence Code 1330 discusses recitals affecting real property which are admitted as an exception to the hearsay rule.   Evidence Code 1340 refers to evidence of compilations of data commonly used in real estate sales.   For example, the MLS data commonly relied upon by experts can come in as evidence as an exception to hearsay.

There are some special rules for experts in the Evidence Code.  California Evidence Codes 801, 802 and 803 which talk about the content of the expert’s testimony.   An expert can testify to matters that are beyond common experience because of his or her special skill and knowledge.   He can rely on evidence known to him/her before the hearing.   The basis of an expert’s testimony can be explored.   In Sanchez, the court found that the expert cannot rely on hearsay information given to him by others in the case, though he may use general hearsay to form an opinion.      The court can exclude a part of the expert’s testimony, if that testimony was based on specific hearsay obtained by him regarding the specific facts of this case.

In People v. Sanchez (2016) 63 Cal. App. 665, which was rather a criminal case, the expert relied on statements about Sanchez made or written by others who did not testify in court.  The expert had no personal knowledge about Sanchez, so every thing he know, others had told him.   The main take away from this case is the difference between General Background Information, which the expert can rely on vs. case specific hearsay which the expert cannot rely on in forming an opinion.  The court held that while general background information about indicators of gang membership came in, the specific information about Sanchez was not permissible because the expert did not have personal knowledge of those matters.  The court identified case specific facts as those relating to the particular events and participants alleged to have been involved in the case being tried.  Read the opinion here.

There is a debate as to whether this can be applied retroactively.  Conservatorship of K.W. (2017) 13 Cal. App. 5th 1274 is one case where the conservatorship court had applied the expert witness rules. In Conservatorship of K.W., the court disallowed a part of the expert’s testimony, but found because the doctor had examined K.W., some of his information was from personal knowledge.  Because the Court of Appeal stated that the error was not prejudicial, it deemed the error as harmless so the diagnosis, even if it had come from the medical records, did come in as evidence.

Application of Sanchez to Will and Trust Contests re Medical Experts:

In Will and Trust contests, we often rely on retrospective assessments, after someone is deceased or is incapacitated.    For example, capacity and undue influence matters are always looked at retrospectively.  Hearsay in those cases comes from medical records and estate planning attorney’s files.   The business records exception to the hearsay rule requires that the records be authenticated via a subpoena issued, followed by an affidavit or declaration of the producing person or entity.   It is important that the custodian of record affidavit be available at the time of the will contest or trust contest trial.

The conditional admission rules in California Evidence Code 403, gives flexibility in trials to have the expert testify as to items which are conditionally admitted, but which must be brought in later in proper form.

To discuss your Los Angeles case with Will Contest attorney, Mina Sirkin, call or contact us at 818.340.4479 or email us: Info@SirkinLaw.com.