In February 2020 (read: pre-COVID-19-pandemic and the California shelter-in-place order taking hold), I was lucky enough to sit down with Nathan Pastor (JD ’14, LLM ’16, right) to discuss a case that resulted in a seismic shift in California probate law—Barefoot v. Jennings. The audio recording and transcript of that interview, as well as a PDF of Barefoot‘s final decision, are below.
Nathan has offices in the Bay Area and focuses his practice on trust and estate litigation, conservatorships, trust and probate administration, and estate planning. He can be reached at NathanPastor.com.
Bacilio Mendez II: My name is Bacilio Mendez II and I am the founding editor-in-chief of the Golden Gate University Tax & Estate Planning Review. If you could introduce yourself.
Nathan Pastor: Yeah, Nathan Pastor, lead counsel for the Barefoot Appeal.
Mendez: Awesome. For this recording, I am just going to ask you a little bit about the case. I know about the case, but people who are going to be reading about the case will probably not know very much, but we will be glad to inform them. If you could just give us a quick rundown of why we should care about the Barefoot case.
Pastor: Yeah, I mean the Barefoot case deals with standing which is a bit of a dry issue but it becomes more sexy when you realize the implications that it has for the state of California with regards to trusts and estates. What happened was that my client Marie Barefoot was disinherited from her mom’s trust in the final iteration of twenty-four amendments to the trust, so her mom couldn’t make up her mind I guess for twenty-four versions, and so what the trial court said in Tuolumne County was that my client, because she was not a beneficiary in the last iteration of the trust, because she was disinherited, that she did not have standing to litigate her trust contest, contesting the validity of the twenty-fourth amendment in probate court and that she may have remedies somewhere else but the court wasn’t going to tell her what exactly to do they just knew that it didn’t belong in probate. That had major implications for trust litigation in California after it made it through the Fifth District Court of Appeal. The Fifth District Court of Appeal out of Fresno agreed with the trial court saying disinherited beneficiaries have no standing in probate court.
Mendez: Too bad, so sad.
Pastor: Too bad so sad, see ya later. That was wrong for a couple reasons. One is that disinherited beneficiaries oftentimes are alleging that they were disinherited because the settlor who created the trust or the amendment to the trust lacked capacity; was susceptible to fraud or undue influence; that a caregiver, a child, a cousin, really anyone exerted undue influence on that person to cause the disinheritance. These are sensitive matters involving elder abuse and individuals with diminished capacity that might have substantial assets and so the disinheritance is kind of like the litigation that happens post death whereas the financial elder abuse litigation is what happens pre-death. It’s a very important issue and the reason it should belong in probate court is because probate courts have specialization in handling probate matters that are quite complex. You know twenty-four iterations of a trust and complex interpersonal family dynamics, the management of the trust by the court supervising the trustee making sure they’re managing the assets correctly, making sure they’re not raiding the assets during the trust contests are all things that are within the purview of the probate court and others civil courts don’t have the authority to supervise the trustees management in the trust funds they would just hear the fraud or undue influence peace to decide whether that instrument was valid or not so when the Fifth District agreed with the trial court it became precedent for the whole state of California that you couldn’t, if you’re disinherited, you couldn’t bring your contest in probate court if you’re disinherited to zero percent. But if you had a penny or a fork or .0001% then you’re allowed in probate court so there is kind of like a meaningless distinction that was made and so me and my client thought that it was wrongly decided, we petitioned for review at the Supreme Court and they granted review.
Mendez: Well, for some people, wouldn’t you think that if they’re disinherited to zero, as opposed to the fork or the penny, the fork or the penny kind of sends a message? Whereas, if you’re disinherited to zero that at least begs the question of “Was there undue influence there?”. If my family leaves me a fork or a penny, they were obviously trying to tell me, “this is all you’re getting,” as opposed to being completely written out after being included for twenty-three amendments and then all of a sudden, you’re getting nothing. That is also a difference that the court should take a look at, as opposed to the fork or the penny.
Pastor: Sure, that kind of gets to the heart of the issue which is the court should be able to take a look at it in probate court to make sure that it is a message that wasn’t the product of fraud or undue influence whether it was a fork or a penny or zero percent that the probate court should be able to review these things on a regular basis. If someone raises it as an issue.
Mendez: Instead of just closing the door.
Pastor: Exactly. The court’s duty is to comply with the intent of the decedent. And so if there is something that is preventing the decedents intent from being carried out like an amendment that’s presumed valid, even if it’s by a caretaker or someone who’s exerting fraud or undue influence, or if it’s a doctor overseeing the patient or a lawyer who’s writing themselves into the amendment the court should be able to review these things whether to make sure that the message that is being sent is the message from the decedent and not from some other third party.
Mendez: Sure. Now could you go into a little bit, without telling anything you can’t tell, about the difference between the twenty-third and twenty-fourth amendment and what your argument was to the court to say Do we have my client be written back in or do we unwind the entire twenty-fourth amendment or just the provision dealing with her?
Pastor: That’s what’s interesting about the iterations of the trust. The amendment that my client’s pleadings ask the court to go back to was the sixteenth amendment because that’s when she had a major share in the trust, but, then, overtime, and as the decedent’s capacity declined, her share in the trust declined and so in the twenty-third amendment she had a specific bequest of $20,000 and then in the twenty-fourth amendment she receives zero and is specifically disinherited. So, if we could go back to the twenty-third she’d have $20,000 and if we went back from back to the twenty-second, you know, it kind of goes up and up, until you hit the sixteenth, which is where she was actually named as the trustee, as well as being given a large percentage. I don’t think it was the majority percentage, but it was a significant percentage compared to her zero percent that she has now.
Mendez: So, now that you are where you are with the case what can you offer to other practitioners when it comes to this kind of issue coming up? Whereas in the past it was a “too bad, so sad” scenario, where the door has been slammed in your face. What can you kind of offer as practice pointers or things to lookout for when dealing with such an issue?
Pastor: Sure, I think that the major takeaway from this case is to ensure that you’re pleading everything possible as a cause of action. For example, my client had Intentional Interference with an Expected Inheritance, Lack of Capacity, Undue Influence, Elder Abuse. She never specifically stated that Probate Code Section 17200 was the only code section which she derived standing from, which is something that the Court of Appeal said is, that because she was bringing a very specific proceeding pursuant to Probate Code 17200, which she never said was, the only code section that she derived standing from, that that’s why she did not have standing. The main takeaway from the Supreme Court decision in January is that probate courts are flexible. They can fashion remedies and procedures that are tailormade to each individual case. And so, as long as you have the basic causes of action which would confer standing that you’re at least allowed to proceed to the next part of the case. That’s where the rest of the litigation at the Appellate Division will probably derive from. You know how many rights doesn’t the disinherited beneficiary have related to the administration of the trust, during the trust contest, how quickly will courts hear the trust contest. Will they just here demurrers with regards to the standing issue in order to let people proceed? Will disinherited trust beneficiaries be able to force an accounting to see at least what the inventory of assets are or to get a freeze on the assets until they can get a decision on whether they are in fact beneficiaries or not? Another point of litigation that will come about is whether someone is trying to get rid of the trust instrument as a whole and go back to intestacy, it was just an error at law, has standing to bring a petition under 17200. They definitely have standing in my opinion under Section 850 because they are trying to transfer property out of a trust completely and just say this trust is invalid as a whole and so that is just some issues down the line that people can keep an eye out for which were not specifically ruled on by the Supreme court’s decision in January.
Mendez: So now where are you with all of this? It’s February now so you just got this decision last month?
Pastor: Yes, it’s a long way down to the trial court basically we’re waiting for the Supreme Court’s decision to become final. There’s a California Rule of Court regarding when that decision becomes final, I forget the exact amount of days but I believe it’s between thirty or forty days and then it goes down to the Appellate Court and then they remit it down to the Trial Court where they argue about the fees and costs associated with the appeal and it was successful and then after we have that then we proceeded at the trial court level with figuring out where we’re at with discovery and trial there’s likely other sub issues to be litigated at the trial short level which will probably be raised by my client. And also another issue is basically whether you’re allowed to challenge the judge when you go back down on a 170 etc. challenge to have another judge hear the matter this is another decision my client will have to make as it goes back down through the system not as quick to get back down to the trial court from the Supreme Court as it is from the appellate division.
Mendez: Can you just remind people who are going to be reading this when this all began? So, you started this day came through here?
Pastor: Yes, my client filed, and I can send you an email with the exact date that she filed the initial position, but I believe it was over three years ago now. But what I do know is that we petitioned the Supreme Court for review in either December or November 2018 and then most of the briefing took place over June, July, August 2019. And then we had oral arguments in November 2019 and then the decision was January 2020. So, we’ve been at the Supreme Court level for I guess it was over twelve months by the time we got to oral argument and then they spent at least another November 6th to January 23rd I believe writing the opinion. Close to sixty days. So yes, over a year and just at the Supreme Court level. And then I think the appeal took a year and then I think they were at the lower court for a period of time as well so I’ll get you the exact days but it was a long time definitely like close to three years.
Mendez: Just to be able to walk through the door of the courthouse?
Pastor: Just to be able to obtain standing right to proceed with the underlying contest during which time who knows what’s happened to all the evidence in the witnesses and the trust assets, the most important part of any trust contest.
Mendez: So then as we’re trying to focus on practice, while you’re going through all of that, what could you do or what could you offer to practitioners who are faced with a similar issue where you’re going through this lengthy process, just so you even enter the courthouse issue, when it comes to depositions or other discovery or, you know, combatting the spoliation?
Pastor: Right, the issue when you’re up on appeal and your trust contest is stayed is just a terrible situation to be in because there’s nothing that I could figure out that could be done at the trial court level for the supervision of the trustee because we had a court order saying that my client had no interest. I think that the best way to do it would be to concurrently file a petition for a civil action and a probate action and that’s what people were doing until we had this court order from the Supreme Court merging it and saying you don’t need to do that. But for practitioners that’s what a lot of people were doing was concurrently filing a civil action which they did have standing to bring. But of course the civil court does not have the ability to supervise the trustee. So you could at least go through discovery and maybe send out subpoenas to get the information you need but you couldn’t prevent the trustee from spending down the trust, or using the trust assets for the defense of this you’ve got an instrument or you know from transferring real properties out of the trust to their names as an individual. But at least you be able to preserve evidence for the underlying contests and then at some point you probably be able to get a judgment, a money judgment. if they in fact were transferring things out of the trust you might be able to get a disgorgement of attorney’s fees so that’s what people were doing is the civil action while the probate action was stayed. What happened in my case was that the probate action was stayed voluntarily because there was another beneficiary who had contested the trust and they didn’t want to move forward with that trial and they heard what happened with my appeal. And so they voluntarily stayed that, I don’t know what would have happened if had not been voluntarily stayed. We might have ended up with two trials or had some of the testimony from the trial on the other beneficiaries contest. But that’s what actually made my contest stronger was that I said, “look I don’t need to file a separate civil action, this lower action is stayed because they don’t want to have to go through two trials because that’s not only a waste of judicial resources but a waste of trust assets.” If in fact they are successful or not, we have to disgorge those fees. You know so it’s just on and on with tangential issues that have nothing to do with the underlying contest. They ended up helping my appeal, because they strengthened it a little bit know. I could have filed a companion civil action or at least continued discovery but it would undercut my main argument which was that that’s a total waste of time and money so why would I do that.
Mendez: When you were working on this did you kind of understand the potential for it to be a historic case or did you think, this is going to change everything going forward for people in similar situations or were you just head down trying to figure out what your next move was?
Pastor: Yeah, I think that when I saw the lower court’s opinion come out it was an unpublished decision and I saw that it showed a lack of understanding about the inner workings of probate court and its functions especially in the larger counties like San Diego, Los Angeles, San Francisco, some of the more robust probate counties where they have many, many probate matters and full departments devoted just to probate. So, when I saw that this small County had affected how probate practice, or I saw this unpublished decision which was ya know, hey this would not work in larger counties. I mean where they have whole staffs, some counties have four to eight probate examiners just examining the files to move the cases through, here in Alameda County we have two, one probate judge and one probate commissioner. In Contra Costa County there is two probate judges you know it’s on and on with effects on the practice and then someone out of the Second District who had an appeal, that this decision, an unpublished decision from the Fifth District, it would have helped them out of the Second District, wrote a letter to the Fifth District. Under the California Rules of Court, they can go through the factors which would merit publishing the decision because it’s on an area of law that hasn’t been ruled on before, because, it’s, you know, well written, on and on, with the factors, and so they wrote and urged them to publis. And then, I think, nearly a month after release, two weeks to four weeks after, they had released the unpublished decision. They then published the decision and then it got point because I had already thought through all these other things I just mentioned. It occurs to me how it would affect the public at large and also how it would affect how the court rules on other things tangential to trust contests like you know using Probate Code 17206 to manage any trustee in the state of California and 17206 basically says that the court can make any orders necessary relating to a trust administration and you’ll have to get the exact language of that but it’s something like that and so the court’s decision really narrows the probate courts powers to dispense with the matters before it and trust law spans life itself with regards to what it could pertain to like real property individuals who are still alive who lack capacity with a revocable trust, charitable trusts you know foreign properties, taxes. ILITS [Irrevocable Life Insurance Trusts], all the things that we learn about in the LLM in Trust and Probate Law. It effects all those things and so when it was published I thought wow this definitely has the potential to be a historical player at the Supreme Court level because it has to do with the infrastructure of the probate court as a whole. Also, the other reason I knew that it would be historic is because everyone from around the state of California including admin employers that work for judges in the state of California were calling me asking what was the status of this case petitioning for reviews
Mendez: So, it was being watched within the county?
Pastor: Yeah, professors out of different counties in different parts of the state all calling wondering what is going on with this case it has affected my case in a very, very seriously negative way. Major trust contests out of really large, larger counties in the state by charities who had absolutely been the victims allegedly of elder abuse undue influence would completely cut out of a trust. And wondering why am I not in probate court anymore why am kind of stranded. And a lot of people have major issues with the 120 day statute and limitations for a trust contest in probably Code 1606.17 and then if you don’t bring a trust contest with 120 days you’re barred so whether they could consolidate the civil action which was followed after 120 days with the trust contest which was now dismissed because of the barefoot ruling in that district you know they were kind of left out with no remedy possibly because this very severe 120 statute of limitations rule. And so, because all of this was going on when I learned about the district’s ruling and sending out a prayer to the Supreme Court that they would take this on review I definitely knew that this would be a big decision that affected the state in a historic way.
Mendez: Have you heard from any of those people who called you originally to ask like what’s going on with this case after you got your decision?
Pastor: Yes, in fact I would hear from them every few months asking what the status was when’s the decision coming out once the brief had been filed. There was I think at least six counties that filed amicus briefs I know it was like Ventura, Orange County, Los Angeles County, TEXCOM for the whole state of California filed a brief. I granted them some oral argument time so I knew that this just being watched very closely by the bar associations from the different counties, lawyers across the state, people whose cases this intimately affected including actually some lawyers who this affected their personal, who weren’t trustees lawyers who were dealing with this within their families and so they were calling to ask you what’s going on I’m about to lose standing to contest this other person from my mom’s friends had created a trust I don’t know what’s going on it looks like it might be kicked out of court what’s going on. So, I heard from all those people leading up to the decision and then certainly I received a lot of happy reports after the decision came out and they were allowed to proceed.
Mendez: How does it feel as you know still new up-and-coming attorney? I mean, you’ve been practicing since December 2014?
Pastor: Yeah it feels amazing and it was an absolute honor to get to argue with the California Supreme Court they’re so sophisticated, on top of it, really understood the issues, and had big binders, they’re all marked with the briefing. And you have a whole hour for oral argument, half hour one side, have half an hour for the other side, and, so to get to go through the process, it was an honor to get to represent, you know, someone who had been wronged, and to right their wrongs, was an honor. And to basically fix the issue for generations to come, was an honor. So it’s definitely, kind of like, awe inspiring and to do it so early in my career and affect a field I care a lot about. Of course I got my LLM in estate planning here at Golden Gate [after also earning my JD here]. But to know that kind of the whole world was watching is definitely like a very like awe inspiring experience as a whole was stressful at times. There’s no real cases directly on point but you know it definitely feels good that it turned out the way it did.
Mendez: Thank you for the time, Nathan; it’s always great to see GGU alum doing impactful work. We’ll be keeping an eye out for the final ruling [available for viewing and download below].
Many thanks to Staff Writer Hallie Makrakis (JD ’21) for diligently compiling the above transcript.
Barefoot