Wife goes to an attorney to get a trust in which to place a piece of her separate marital property, but leaves with a trust that (apparently accidentally) puts all of her property into trust. After her death, her husband seeks to reform the instrument, and the trial court elects to do so, finding clear and convincing evidence that the document didn't reflect the decedent's actual intent. The Court of Appeal affirms.
All good. Right as it should be.
But the thing about the opinion that has me a bit concerned is the paragraph at the bottom of page 9. That portion of the opinion reads:
"The interpretation of a will presents a question of law for
our independent review when there is no conflict or question of
credibility in the relevant extrinsic evidence. [Cites] To the extent the probate court’s decision rests on its
findings of fact, however, those findings are reviewed for
substantial evidence. [Cites] The clear and
convincing standard, however, “applies only at the trial level. On
appeal, it is assumed that the trial court applied the proper standard and the judgment will not be upset if there is
substantial evidence to support it.” (Shupe v. Nelson (1967)
254 Cal.App.2d 693, 700; see Sheila S. v. Superior Court (2000)
84 Cal.App.4th 872, 880-881.)"
Now, personally, I think that's correct. It's exactly what the cases that Justice Perren cites indeed hold. As well as what Witkin says is the law of California with respect to appellate review. A trial court's factual decision is reviewed on appeal for substantial evidence, which is what the Court of Appeal here does.
But the lingering problem is that not everyone agrees. The California Supreme Court is currently reviewing this precise issue. As that tribunal describes that pending case:
"Conservatorship of O.B., S254938. (B290805; 32 Cal.App.5th 626; Santa Barbara
County Superior Court; 17PR00325.) Petition for review after the Court of Appeal
affirmed the judgment in a conservatorship proceeding. The court limited review to the
following issue: On appellate review in a conservatorship proceeding of a trial court
order that must be based on clear and convincing evidence, is the reviewing court simply
required to find substantial evidence to support the trial court’s order or must it find
substantial evidence from which the trial court could have made the necessary findings
based on clear and convincing evidence?"
There's a decent argument that if the California Supreme Court decides that case the other way, then the Court of Appeal's decision here would need to be reversed and remanded. Because if the Court decides that the clear and convincing evidence standard does not, in fact, disappear on appeal, then the Court of Appeal's decision to eliminate it here was wrong, so as presently structured, we'll have to do the whole thing over again on remand.
And I say that because I'm extremely confident that the remand wouldn't matter in the slightest; that the Court of Appeal would come out the exact same way even if it reviewed for clear and convincing evidence on appeal. We'd just waste more time and add yet more attorney's fees to a fairly small will dispute that's already probably sucked up a fair amount of the underlying assets litigating about them.
So given the pendency of Conservatorship of O.B., were I the Court of Appeal, in the interests of justice, I might get ahead of it. And expressly explain that I'd come out the same way even if the California Supreme Court decides to abandon the substantial evidence test and to say that the Court of Appeal has to review for clear and convincing evidence (just like the trial court). That way there will be no need for the parties to seek review, wait to see what the California Supreme Court decides, potentially participate in new proceedings on remand, etc.
No reason not to. It's an extra line that's (1) accurate, and (2) may save the parties as well as the Court of Appeal some time, trouble and effort.
FULL DISCLOSURE - I'm representing the respondent in Conservatorship of O.B. on a pro bono basis, and argue therein for the retention of the standard applied by the Court of Appeal in today's opinion. The content of the Court of Appeal's opinion doesn't affect in the slightest the outcome of Conservatorship of O.B., but no reason not to disclose where my lawyerly sympathies lie here.
