Refusing an evidentiary hearing on contested probate matter is error, and possibly structural error

Tim Kowal October 11, 2023

After a trust beneficiary petitioned for over $1 million in trust distributions in Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.), the trustees contested the petition and requested an evidentiary hearing. The probate court refused to hold an evidentiary hearing. Yes, I know “to some persons a million sounds like a lot, “the probate court reasoned, but there’s a lot of money and litigation here so the $1 million was awarded without an evidentiary hearing.

Wrong. "It has long been the rule that in probate matters 'affidavits may not be used in evidence unless permitted by statute. . . .'" (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1308-1309.) "[A]ffidavits and verified petitions may not be considered as evidence at a contested probate hearing. . . .'” Here, the distribution petition was contested. Therefore, "the probate court should have granted the request for an evidentiary hearing . . . ." (Estate of Lensch (2009) 177 Cal.App.4th 667, 677.)

The interesting question is whether the denial of an evidentiary hearing is structural error requiring automatic reversal, without a showing that the error resulted in prejudice. After all, without a chance to put on evidence, how can a challenger prove the matter on which the court prevented proof?

Too bad the court reversed on a different ground, so it did not reach the question of structural error. So we don’t know if the denial of an evidentiary hearing was reversible error.

But the court directed the probate court to hold one just the same.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. If you need help with a trial or appeal or have an interesting legal question, contact Tim at [email protected] or (949) 676-9989.

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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

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Refusing an evidentiary hearing on contested probate matter is error, and possibly structural error

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"A judge is a law student who grades his own papers." — H.L. Mencken