Elaine and William Murphy Sr. had two children, Murphy Jr. and Maureen. Murphy Sr. had a thriving law practice in San Francisco and an estate worth $2 million. Murphy v. Murphy, 164 Cal.App.4th 376 (2008). When Elaine became ill in 1991, Maureen returned to the family home to care for her mother. Elaine died in 1999, when Murphy Sr. was 74 years old. Perhaps in response to Elaine’s death, Murphy Sr. suffered a debilitating stroke in 2001. Murphy Jr. petitioned the probate court for a conservator of both Murphy Sr.’s person and estate, wary of concerns over his sister’s possible undue influence over his father.

Though Murphy Sr. consented to the temporary appointment of a conservator, he “’staunchly oppose[d]’ continuing the conservatorship thereafter.” Despite these objections, the court appointed a conservator over concerns of the father’s weakened state, that Maureen had been imprudently interfering with Murphy Sr.’s law practice, and because of a “considerable amount of dysfunction and conflict” within the family. Murphy Sr. was outraged that his son had instituted the conservatorship proceeding. Unbeknownst to the son, as the conservatorship proceeding was commenced, Murphy Sr. disinherited Murphy Jr., leaving him $1 and everything else to his daughter. The subsequent litigation turned on whether the holographic will and revocable living trust agreement disinheriting the son were validly executed because of the father’s condition. After the conservator’s appointment, the father moved to pull the estate out of the conservator’s grasp and into a living trust.

California codified the “doctrine of substituted judgment, which provides that a trial court may authorize the transfer of estate property that a conservatee would have transferred had he or she been competent to act.” Id. at 394, California Probate Code § 2580 et seq. Thus Murphy Sr.’s conservator could transfer the property into the trust if given court approval. At that substituted judgment proceeding, both the daughter and son must raise all claims or they will be later barred by collateral estoppels or res judicata. Ordinarily a will may not be contested while the testator is still alive. The rationale is that the testator can always change his mind before death. The twist here is that the testator is still alive at the time of the substituted judgment contest – so the court may not only glean his intent – but also bar further litigation after the testator’s death.

The elements for collateral estoppel or issue preclusion in California (the court did not analyze res judicata on the present facts) are: “(1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” Murphy, 164 Cal.App.4th at 398-399. Because these elements were met in the present case, Murphy Jr. could only assert his undue influence claims once at the conservator hearings. His loss on the issue prevented him from asserting any future claim of undue influence, but it would not necessarily bar another beneficiary from relitigating the issue (element 5).

Filed under: Probate, Probate Litigation, San Diego Estate Planning, Will Contests, Wills, Wills and Trusts