Metropolitan News-Enterprise


Tuesday, April 6, 2021


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Parties That Skipped Mediation Properly Excluded From Share of Trust—C.A.

Gilbert Says That Non-Participants Have No Cause to Complain; Tangeman, Who Agreed With Resolution of the Case in January, Dissents, Following Rehearing


By a MetNews Staff Writer


Div. Six of the Court of Appeal for this district, following a rehearing, yesterday held, as it did in January, that parties that were apparently intended as named beneficiaries of a testamentary trust that did not participate in court-ordered mediation are entitled to nothing—but this time the opinion drew a dissent.

The majority declared that “parties may not refuse to participate and then complain that they received nothing,” while the dissent argues that the testator’s intent has been thwarted.

Presiding Justice Arthur Gilbert authored the majority opinion, in which Justice Kenneth Yegan joined. Justice Martin J. Tangeman, who had signed Gilbert’s Jan. 26 opinion, now dissented.

The majority’s opinion affirms a judgment by Ventura Superior Court Judge Robert L. Lund which denies any part of the trust estate of decedent Don Kirshner to parties that did not attend the mediation sessions. Those parties are the Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacred Heart Auto League, National Prolife Action Center, doing business as Liberty Counsel, and Orbis International.

The trust was established by Don F. Kirchner, a retired professor of marketing at California State University, Northridge. He died Nov. 10, 2018.

Missing Exhibit

While there were four specific $10,000 gifts, the trust instrument provided that rest of the estate was to be divided as provided for in Exhibit “A.” However, trustee David Breslin was in a quandary because no exhibit was attached—though he did find a loose paper listing 24 charities with handwritten notations that appeared to be percentages.

Lund ordered mediation on March 27, 2019. Included in his order were the charities and Kirshner’s relatives, who would inherit under intestate succession if the paper Breslin found were determined not to be Exhibit “A.”

Despite receiving notice, only five of the charities, which included the Thomas More Law Center, participated in the mediation. The relatives and the five charities reached an agreement, with the participating parties dividing $1,416,257, and their lawyers receiving $67,000 in fees.

Lund approved the settlement and Gilbert’s opinion affirms the judgment.

Gilbert’s Opinion

Denominating the charities that absented themselves from the mediation as the “Pacific parties,” Gilbert wrote:

“The Pacific parties may not ignore the probate court’s order to participate in the proceedings and then challenge the result. The probate court’s mediation order would be useless if a party could skip mediation and challenge the resulting settlement agreement.

“The Pacific parties complain they were denied an evidentiary hearing. But the probate court has the power to establish the procedure….It made participation in mediation a prerequisite to an evidentiary hearing. By failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. It follows that the Pacific parties were not entitled to a determination of factual issues, such as Kirchner’s intent, and cannot raise such issues for the first time on appeal.”

Tangeman protested:

“A trust must be administered according to the testator’s intent….That means honoring Don Kirchner’s final wishes above all else.

“Here, however, the probate court exalted principles of forfeiture over Kirchner’s express wishes, concluding that the Pacific parties forfeited their rights to the gifts Kirchner wanted them to have because they did not satisfy a requirement Kirchner did not impose: participation in mediation at their expense. In effect, the court imposed a terminating sanction against the nonappearing beneficiaries. The majority countenances this result. I would not.

“Equity abhors a forfeiture.”

The case is Breslin v. Breslin, 2021 S.O.S. 1404.


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