Sacks Glazier Franklin & Lodise Obtains Precedent-setting Decision in Probate Case

For Immediate Release
August 30, 2018

Partner Meg Lodise defeats appeal seeking to invalidate exercise of power of appointment

LOS ANGELES – The trusts and estates litigation firm, Sacks Glazier Franklin & Lodise LLP, led by partner Meg Lodise, along with Roehl & Glowacki, P.C., successfully defended an appeal brought to challenge the exercise of a power of appointment to benefit the firm’s client. The main issue in the case involved whether the language used in the decedent’s will included specific reference to the power of appointment granted in a trust set up by the parents of the appellants, respondent, and decedent.

In the case (O’Connor v. O’Connor, 4th Dist., Div. 1, 8/29/18), siblings Brian O’Connor and Astrid O’Connor-Bassett, appealed orders declaring that their brother John O’Connor’s power of appointment exercised in his will complied with California Probate Code Section 632 requirements to effectively appoint assets to respondent Kevin O’Connor.

The Arthur O’Connor and Hilda O’Connor Family Trust allocated equal shares of the trust estate to each living child, directing that the share for John O’Connor be held in trust for him. The trust granted him a power of appointment over his trust. Upon Hilda O’Connor’s death in 1992, the trust divided into her sub-trust, which included a power of appointment for John O’Connor, and Arthur O’Connor’s sub-trust, in which the power of appointment was removed.

Following John’s death in 2014, Kevin O’Connor petitioned to probate his brother’s will and asked to be appointed executor of the estate. His petition sought to establish the validity of the will and the exercise of the power of appointment. The appellants contested the will, seeking to invalidate the power of appointment. The parties agreed to have a judicial referee hear the matters, which resulted in the referee issuing a statement that the will met the conditions established by the sub-trust and the probate code. In 2016, the probate court adopted the referee’s decision and declared Kevin O’Connor the prevailing party. In 2017, the probate court granted his petition for probate and appointed him executor of the will. The appeal was filed from the probate court’s orders.

In a published decision, the Court of Appeal affirmed the probate court orders. It concluded that the language in the decedent’s will contained “enough detail to discern his conscious exercise of the particular power of appointment granted to him, and thus complied with the requirements of both the granting instrument and section 632 [of Probate Code] that he makes a specific reference to the power of appointment.” In so concluding, the court distinguished this case from Estate of Eddy (1982)134 Cal. App.3d 292, where an exercise failing to refer to the power of appointment in an instrument was held insufficient.