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Bringing Beneficiaries to the Mediation Table: Drafting Enforceable Trust Provisions Requiring Mediation of Disputes During Post-Death Trust Administration

This article was originally published in California Trusts and Estates Quarterly, Volume 20, Issue 2, 2014

by Christopher D. Carico | Partner

I. Introduction

Mediation, when available, continues to be an effective, cost-efficient tool for resolving contested probate matters. Until 2007, the local probate rules of some of the larger California counties gave the probate court the explicit power to compel mediation in contested probate matters.2 This power vanished in California with the holding in Jeld-Wen, Inc. v. Superior Court.3 Estate planning clients often prefer the concept of mediation in the place of protracted litigation to resolve potential future disputes among family members concerning administration of their estate plans. Carefullydrafted trust provisions utilizing conditional gifts can serve to give an incentive to the beneficiaries and trustees to enter into a binding agreement at the outset of the administration to mediate future disputes. This agreement to mediate in turn can empower the court to compel mediation when disputes later arise, without violating the public policy concerns addressed in Jeld-Wen.

This article begins by reviewing current California law relating to the enforcement of settlor-imposed conditions on the receipt of gifts, including a requirement in the trust instrument that the parties agree to mediate any future disputes as a condition precedent to receiving the gift. It then discusses the public policy considerations that could restrict the enforcement of a mandatory mediation provision, namely, voluntariness, access-to-justice, unconscionability, and avoidance of forfeitures. The article continues with the authors’ recommendations on how to draft mediation provisions into the trust instrument to avoid public policy pitfalls. The article concludes with suggested trust language that conditions gifts on signing an agreement to mediate future disputes, followed by a sample agreement to mediate.

II. Settlor’s Right to Impose Reasonable Dispute Resolution Conditions

The settlor “may dispose of his property on whatever condition he wishes to impose,” as long as the condition is not illegal or against public policy.4 California generally has a strong public policy in favor of deterring litigation, including the use of mediation to resolve disputes.5 Fundamentally, permitting the settlor to condition gifts under the trust instrument on the beneficiary’s written agreement to participate in mediation to resolve any future disputes appears consistent with California public policy.6

The paramount rule in the construction and administration of testamentary instruments is to carry out the settlor’s expressed intent as far as possible.7 Following this rule, if the trust instrument clearly expresses the settlor’s intent that the parties be required to participate in mediation in order to receive certain benefits, public policy would ordinarily support enforcement of the mediation requirement.

The oft-cited benefits of mediation are the following:

  1. “[T]rial is costly, time consuming, and stressful for the parties involved.”8
  2. Many disputes can be resolved less formally.
  3. Mediation, as a means of dispute resolution, has a proven record in California and elsewhere “for reducing the cost, time, and stress of dispute resolution . . . .”9
  4. Mediation can provide parties with a “simplified and economical procedure for obtaining prompt and equitable resolution of their disputes . . . .”10
  5. Mediation provides a “greater opportunity to participate directly in resolving these disputes.”11
  6. “Mediation may also assist to reduce the backlog of cases burdening the judicial system.”12
  7. Mediation can “have the greatest benefit for the parties in a civil action when used early, before substantial discovery and other litigation costs have been incurred.”13

III. Public Policy Concerns with Imposing Mediation

The public policy considerations that limit the probate court’s ability to unilaterally impose mediation on the parties are generally considered to be (1) voluntariness of mediation, (2) access to justice, (3) unconscionability claims, and (4) the avoidance of forfeitures.14

A. Voluntariness Issue Raised by Jeld-Wen

Prior to 2007, the local probate rules for some counties in California permitted bench officers to order the parties in long-cause contested matters to participate in mediation.15 The probate court’s ability to compel mediation remains the rule of law in many other states.16 In California, the court’s power to compel mediation changed in 2007 with the decision in Jeld- Wen.17 There, the trial court ordered the parties involved in a construction defect case into private mediation and appointed the neutral to mediate and conduct settlement conferences for a maximum of 100 hours at the hourly rate of $500 per hour. The parties were also ordered to share the costs of the mediator.18 The maximum liability exposure for one of the tangential defendants, Jeld-Wen, Inc., could have been less than the costs it would incur in participating in the mediation (i.e., attorneys’ fees and pro rata share of mediator fees).19 Jeld-Wen therefore refused to mediate. The trial court issued sanctions against Jeld-Wen and ordered Jeld-Wen to attend the next mediation conference.20 The Court of Appeals reversed, finding that forcing a party to attend and pay for mediation over objection was “antithetical to the entire concept of mediation” being voluntary.21 The decision in Jeld-Wen effectively ended the Superior Court’s ability to force contestants in probate proceedings into mediation. As a result, in 2008, the local probate rules for some counties were modified to eliminate the rules giving the court the ability to impose mediation.

B. Overcoming the Voluntariness Hurdle

While courts are currently prohibited from forcing parties into mediation, they may generally enforce private contractual provisions that require parties to mediate a dispute first as a condition precedent to obtaining certain benefits under a contract.22 In Lange v. Schilling,23 the Court of Appeals upheld contract provisions requiring mediation as a condition precedent to receiving an award of attorneys’ fees.24 “[T]he public policy of promoting mediation as a preferable alternative to judicial proceedings is served by requiring the party commencing litigation to seek mediation as a condition precedent to the recovery of attorney fees . . . . [H]ad the parties resorted to mediation, their dispute may have been resolved in a much less expensive and time-consuming manner.”25

If the trust instrument requires that the beneficiaries execute an agreement to mediate future disputes as a condition to receiving a specific benefit under the trust instrument, and the beneficiary signs the agreement in order to obtain the benefit, the beneficiary has voluntarily consented to mediate future disputes. The trust document can require the trustee to agree to mediation as a condition of accepting office. The court can then enforce the agreement to mediate in the event of a future dispute, even over objection of the party, without violating the public policy of voluntary participation in mediations.

C. Constitutional Guarantees of Access to Justice

The United States and California Constitutions guarantee citizens access to justice–the right to petition the court to resolve grievances.26 All persons must be assured access to the courts without regard to their economic means.27 Public policy prohibits creating unreasonable financial hurdles to access justice. Trial courts are empowered to waive filing fees and surety requirements and even reduce attorneys’ fees payable by contract to a prevailing party to ensure that all parties can access justice.28 Any alternative dispute resolution, including mediation, which adds or shifts costs to a party otherwise unable to afford it may be unenforceable as a denial of access to justice or due process.

Before distribution of the trust estate, some beneficiaries may lack the economic means to contribute to the costs of the mediator or hire counsel to represent them in the mediation. To avoid potential claims of denial of access to justice and due process, the authors recommend that the trust instrument authorize the trustee to pay from the trust estate all reasonable costs relating to the beneficiaries’ participation in the mediation.29 Given the strong public policy favoring mediation and the proven cost savings from resolving disputes earlier, the payment of the mediation-related costs by the trustee would generally be consistent with the exercise of the trustee’s fiduciary duty to act in the best interest of the trust estate and its beneficiaries, including being cost-conscious.30

D. Protecting against Claims Alleging Unconscionability

A contract requiring mediation, like any other contract, may be unenforceable where enforcement would be unconscionable.31 For an agreement to be deemed unconscionable, it must be both procedurally and substantively unconscionable.32 Since the agreement to mediate included within a trust instrument will necessarily have an element of “take it or leave it” without the opportunity to negotiate its terms (i.e., the settlor is deceased), the agreement is likely to be considered an adhesion contract and procedurally unfair. Substantive unconscionability requires a showing that the contract is overly harsh or one-sided.33 As long as the agreement to mediate applies equally to all parties and does not unfairly shift costs or burdens to a particular party, then the contract should be deemed substantively fair and therefore enforceable.

E. Weakening the Forfeiture Argument

California public policy disfavors forfeitures, but the policy is by no means absolute. A trust provision that denies a specific gift to a beneficiary who refuses to sign the agreement to mediate could be characterized as forfeiture but remain enforceable nonetheless.34The public policy against forfeitures is generally subordinate to the paramount public policy directive to carry out the wishes of the settlor.35

Some commentators suggest that framing the requirement to sign the mediation agreement as a condition precedent rather than condition subsequent sidesteps the forfeiture concerns.36 In the case of the condition precedent, the argument is that there is no technical forfeiture of the benefit by the beneficiary, who failed to meet the condition precedent, since the beneficiary never acquired the beneficial interest. By contrast, in the case of a condition subsequent, the loss of the already vested gift because of subsequent action (i.e., the filing of the adversarial legal action before complying with the obligation to mediate) or inaction (refusing to mediate on request of another party to the agreement) is clearly a forfeiture.

Rather than rely solely on semantic distinctions between conditions precedent and subsequent, the authors recommend that the plan be structured so that the beneficiary will receive a specific gift that is not tied to the beneficiary’s residuary gift, in exchange for the agreement to mediate. Where possible, the specific cash gift to each beneficiary for executing the agreement to mediate should be identical, reinforcing the notion that it is merely consideration for the agreement. Preferably, the beneficiary who refuses to sign the agreement to mediate should forgo only the specific pecuniary gift, still remaining entitled to his or her residuary gift. This approach will weaken the public policy challenge based on total forfeiture, differentiating the agreement to mediate from the type of “all or nothing” forfeiture present with the standard no contest clause.

IV. Waiting Out the 120-Day Period

Except where the written waiver and/or consent of all persons with standing to contest the trust has been obtained by the trustee in advance of or during the 120-day contest period, the authors’ position is that the beneficiaries should not be required to sign the agreement to mediate, nor entitled to the specific gift for signing it, until after expiration of the 120- day contest period.37 Waiting to sign the agreement to mediate until after expiration of the 120-day period has lapsed ensures that the mediation provision (and accompanying gift) is part of a valid instrument. This eliminates the unwanted scenario (and potential for fiduciary liability) where the trustee assumes all testamentary instruments are valid and immediately makes the specific gift to every person named as a beneficiary willing to sign the agreement to mediate, only for it to be determined later (as a result of a successful contest) that one or more of the recipients was not a beneficiary.

V. Not Usurping Probate Court Powers

It remains unsettled in California whether a provision in a trust requiring arbitration, which, unlike mediation, effectively divests the probate court of jurisdiction, will be enforced.38 Probate court is considered uniquely suited to resolve disputes concerning the internal affairs of a trust, and for this reason, it is given exclusive jurisdiction over internal trust proceedings.39 Because probate proceedings are effectively in rem, binding both parties and nonparties, the need for the judicial accuracy and consistency is paramount. To minimize the risk of challenges to the agreement to mediate as usurping the power of the probate court, the authors recommend that the agreement to mediate omit provisions requiring binding arbitration in the event of a failed mediation.40

VI. Binding the Trustee

To ensure that the trustee is equally committed to mediation, the trust instrument should require the trustee also be a signatory to the agreement to mediate. The trustee’s refusal to sign the agreement to mediate after expiration of the 120-day contest period should be an express ground for removal. Since the trustee’s refusal to sign the agreement does not deprive him or her of any substantial economic benefit (other than trustee’s fees, which still have to be earned), the public policy challenge to the trustee’s removal based on a forfeiture argument is weak. With the trust funds otherwise at the trustee’s disposal to pay for mediation, the financial burden of the mediation does not deprive the trustee of access to justice or due process.

VII. Recommended Provisions in Trust and Agreement to Mediate

The authors recommend that the drafter consider the following:

  1. The period of time (after expiration of the 120-day notice period under Probate Code section16061.7) in which a party must sign the agreement to mediate or forfeit rights to the gift should be limited in duration, such as thirty or sixty days after notice.
  2. The cash gift should be made to each party who signs the agreement to mediate, irrespective of whether other parties refuse to sign the agreement to mediate.
  3. The cash gift given to a beneficiary for signing the agreement to mediate should not be subject to future forfeiture for any other reason.
  4. The cash gift for signing the agreement should ideally be the same for each beneficiary.
  5. If possible, the cash gift for signing the agreement should be only a portion of the beneficiary’s total bequest.
  6. In the case of a beneficiary who refuses to sign the agreement, the cash gift should pass to an alternate taker, and not back to the beneficiary through the residuary clause.
  7. The trustee should be authorized and directed to pay from the trust estate the reasonable costs of mediation to be incurred by each party.
  8. Where the settlor’s capacity or susceptibility to undue influence is already in question, the mediation provision should be added by way of a stand-alone amendment, entirely separate from any questionable dispositive amendments.

With respect to the actual agreement to mediate, the authors recommend the agreement to mediate cover the following:

  1. The type of notice required to trigger the obligation to mediate.
  2. The method for selecting the mediator.
  3. The minimum number of hours that each party must participate in the mediation.
  4. Shifting some portion of other parties’ attorneys’ fees against the party, who after signing the agreement to mediate, initiates litigation before mediating.
  5. Allowing certain ex parte relief without mediation if needed to protect the trust estate.
  6. Allowing non-adversarial petitions without mediation to further the administration.
  7. Granting exclusive jurisdiction to the probate court to enforce the agreement to mediate and resolve any disputes relating to the agreement to mediate.

VIII. Conclusion

California public policy favors deterring litigation through mediation but discourages imposing mediation on parties who have not first consented. California law supports conditional gifts that do not violate public policy. Trust provisions that deny a specific gift to beneficiaries who refuse to sign an agreement to mediate appear to be enforceable. A beneficiary who signs an agreement to mediate future disputes in order to receive a specific gift does so voluntarily. Once the agreement to mediate is signed by the beneficiary, the court should be able to enforce the agreement to mediate against the beneficiary over objection, compelling mediation and/or enforcing penalties under the agreement for those who breach the agreement by initiating litigation before mediation. Public policy challenges to enforcement of the agreement to mediate should be minimized: (1) if the conditional gift applies uniformly to all beneficiaries and the condition is limited to only a portion of each beneficiary’s total gift, and (2) the trustee is authorized to pay the beneficiaries’ mediation-related costs from the trust estate.

IX. Model Documents

A. Sample Trust Provision

Article ___

  1. Discourage Litigation. The settlor intends that litigation between the beneficiaries and/or trustee(s) be avoided wherever possible.
  2. Mediation Encouraged to Resolve Disputes. The settlor intends that beneficiaries mediate disputes before litigating them. To ensure that the costs associated with mediation do not limit a beneficiary’s ability to participate in mediation, the trustee is specifically authorized and directed to do the following:
    1. Trust Pays Fees of Neutral. Pay for the costs of the professional mediator (“Neutral”) from trust assets as an administration expense;
    2. Trust Pays Reasonable Costs & Fees of Private Legal Counsel. Pay each trustee’s and each beneficiary’s reasonable mediation-related legal fees as an administration expense; and
    3. Trust Pays Reasonable Travel & Lodging Costs. Pay out-of-county trustee’s and beneficiary’s reasonable travel and lodging costs to participate in the mediation as an administration expense.
  3. Agreement to Mediate; Condition Precedent for Trustee to Act. After expiration of the 120-day notice period under Probate Code section 16061.7, no person named or appointed as trustee or successor trustee (collectively “trustee”) shall have any power to act or continue to act until that person executes the attached Agreement to Mediate (“Agreement to Mediate“). Any person acting as trustee who fails to execute (and provide proof of execution) of the Agreement to Mediate to the beneficiaries within thirty days of a written request by a beneficiary for proof shall be deemed to have irrevocably resigned as trustee.
  4. Agreement to Mediate; Conditional Specific Pecuniary Gift to Beneficiaries. Each beneficiary who executes the Agreement to Mediate within the time frame required therein shall be entitled to a specific cash gift of [_______________].
  5. Attorneys’ Fees Shifting Provision in Agreement to Mediate. A beneficiary who breaches the Agreement to Mediate may have the litigation-related legal fees and costs of the trustee and other beneficiaries charged against the breaching beneficiary’s share of the trust according to the terms of the Agreement to Mediate. A trustee who breaches the Agreement to Mediate may have the litigation-related legal fees and court costs of the beneficiaries and other trustees charged against the breaching trustee’s share of the trust, if any, or against the breaching trustee’s share of the trustee’s fees.
  6. Beneficiaries without Capacity. A beneficiary without capacity may execute the Agreement to Mediate through a court-appointed Guardian ad Litem. The custodial parent(s) of a minor beneficiary may execute the Agreement to Mediate on behalf of the minor beneficiary and may represent the interests of the minor beneficiary at any mediation. Any settlement agreement entered into by the custodial parent(s) on behalf of the minor beneficiary as a result of the mediation shall require court approval before it becomes binding with respect to the minor’s interest in the trust.
  7. Severability. Should any of the provisions of this ARTICLE ___ be deemed invalid as a violation of public policy, the remaining provisions of this ARTICLE ___ shall nonetheless remain in full force and effect.

B. Sample Agreement to Mediate

Agreement to Mediate

WARNING: TO BE ENTITLED TO A SPECIFIC CASH GIFT OF [__________], YOU MUST SIGN AND RETURN THIS AGREEMENT WITHIN 30 DAYS OF RECEIVING WRITTEN NOTICE BY THE TRUSTEE.

WARNING: YOUR FAILURE TO SIGN AND RETURN THIS AGREEMENT WITHIN THIRTY (30) DAYS MAY RESULT IN THE LOSS OF THE SPECIFIC CASH GIFT OF [__________].

Recitals.
  1. The settlor specifically intends that litigation between the beneficiaries and/or trustee be discouraged to the greatest extent possible.
  2. To discourage litigation and encourage mediation, a specific cash distribution of [________] is to be made to each beneficiary who timely signs this Agreement to Mediate (“Agreement to Mediate“). The beneficiary’s signature to this Agreement to Mediateis a condition precedent to the receipt of the above-referenced specific cash gift.
Agreements.
  1. Condition to Receiving Gift. As a condition to receiving the specific cash gift in the amount of [__________] pursuant to the attached trust instrument, I agree to be bound by the terms and conditions of this Agreement to Mediate.
  2. Time Period to Sign and Return the Agreement. The trustee has provided written notice of this Agreement to Mediate and a copy of this Agreement to Mediate executed by the trustee to me. The trust requires that the notice shall be given as soon as reasonably possible after the trust has become irrevocable and the period for contesting the trust has lapsed. The trust requires that I shall have [____] days from the receipt of such written notice and the trustee’s signed Agreement to Mediate in which to sign and return this Agreement to Mediate to the trustee and that if I fail to sign and return the Agreement to Mediate to the trustee within the [____] day period, then I shall forfeit the specific gift of [____________].
  3. Effect of Signing Agreement. In signing this Agreement to Mediate, I understand that I am required to mediate disputes that I have with other beneficiaries and/or the trustee before initiating litigation. In signing this Agreement to Mediate, I understand that I am empowering the probate court, in the event of actual litigation, to charge against my share of the trust estate a reasonable portion of the trustee’s and attorneys’ fees and court costs incurred by the prevailing party in the litigation.
  4. Specific Mediation Requirement. Before filing any complaint, petition, application, or other adversarial legal action impacting the trust, trust estate, the trustee, or any other beneficiaries, other than a trust contest within the 120-day period provided under Probate Code section 16061.7, I agree to initiate and/or participate in good faith in the mediation process outlined in thisAgreement to Mediate.
  5. No Impact on Ability to File a Trust Contest. This Agreement to Mediate shall not limit or impact my ability to file a trust contest within the 120-day period provided under Probate Code section 16061.7
  6. Mediation Mechanics. Specifically, before participating in an adversarial legal action other than a trust contest, I agree to:
    1. Give written notice to each of the beneficiaries and the trustee concerning the nature of my grievances if any, and my intention to comply with the mediation requirements of this Agreement to Mediate.
    2. Work cooperatively with the interested parties to nominate and select within thirty (30) days of the receiving notice from the trustee, a qualified, independent neutral, to serve as mediator.
    3. Work cooperatively with the interested parties to set a date to conduct the mediation, which date shall be within ninety (90) days of the initial notice.
    4. To participate in good faith in not less than eight (8) hours of mediation, unless the matter resolves sooner.
  7. Understanding Concerning Costs of Mediation. I am signing this Agreement to Mediate with the following understanding:
    1. The costs of the neutral shall be paid from the trust estate as a general administration expense.
    2. The trustee shall pay directly to my attorney the reasonable attorneys’ fees charged by my attorney to participate in the mediation, including a reasonable amount of attorneys’ fees for preparation for the mediation.
    3. The trustee shall reimburse my reasonable travel and lodging costs to attend the mediation, if the location of the mediation is more than 120 miles from my home.
    4. The trustee may set reasonable limits on the amount of attorneys’ fees and travel and lodging costs to be reimbursed.
  8. Consequences for Beneficiary Who Fails to Mediate. I understand as a beneficiary that, if I breach the terms of this Agreement to Mediate by refusing to mediate in good faith, then the following shall occur:
    1. The trustee shall charge the trustee’s fees and attorneys’ fees and court costs incurred by the trustee in participating in the litigation against my share of the trust estate; and
    2. If I am the prevailing party in the litigation, I waive the right under Paragraph 12 below to have my attorneys’ fees and court costs paid from the losing party’s share of the trust estate.
  9. Exception for Certain Immediate Ex Parte Relief. The obligation to mediate before filing a legal action shall not apply where immediate ex parte relief is needed to enjoin a trustee or beneficiary from irreparably harming the trust estate.
  10. Exception for Certain Non-Adversarial Pleadings. The obligation to mediate before participating in a legal action shall not apply where the relief requested by the trustee is not reasonably anticipated to be adversarial.
  11. Medical Exceptions. The trustee may excuse a beneficiary’s failure to mediate in person or failure to mediate for the full eight (8) hours or at all for health reasons.
  12. Shifting Legal Fees and Costs to Losing Beneficiary in Dispute. In the event that I am the losing party in litigation concerning the post-death administration of the trust estate (whether I am acting in the capacity of trustee or beneficiary), I authorize and empower the probate court to instruct the trustee to charge a reasonable portion of the prevailing party’s trustee’s fees, legal fees, and court costs against my beneficial share of the trust estate.
  13. Severability. Should any of the provisions of this Agreement to Mediate be deemed invalid as a violation of public policy, the remaining provisions shall nonetheless remain in full force and effect.
  14. Immediately Binding. By signing this Agreement to Mediate, I am immediately bound by its terms, irrespective of whether or not any other beneficiary has signed this Agreement to Mediate.
  15. Governing Law. This Agreement to Mediate shall be governed according to the laws of the State of California.
  16. Venue & Jurisdiction. In signing this Agreement to Mediate, I agree that an action to enforce this Agreement to Mediate may be filed in the county where the principal place of administration of the trust is located and I hereby submit to jurisdiction in such county.

Executed this ___ day of ____________, _____.

_________________________________[NAME OF BENEFICIARY]

ACKNOWLEDGMENT OF RECEIPT BY TRUSTEE

By signing my name below, I, ________________, trustee of the trust, acknowledge that I have received a signed copy of thisAgreement to Mediate from _______________________, and I too agree to be bound by the terms of the Agreement to Mediate.

Executed this ___ day of ____________, 20__.

_________________________________[NAME OF TRUSTEE]

Endnotes

*Carico Glowacki Macdonald Kil & Benz LLP, El Segundo, California Back

1 The authors greatly appreciate and acknowledge the invaluable contributions of Kristi Gallegos, who assisted with the research for this article. Back

2 Los Angeles, Sacramento, San Diego, and San Mateo Counties then authorized bench officers to order parties in contested probate matters to mediation. “[T]he Court shall make a determination whether or not the case should be assigned for mediation . . . .” Super. Ct. L.A. County, Local Rules, rule 10.205, Cal. Local Probate Rules (Cont.Ed.Bar 2007), p. 19-72; “Contested matters may, in the discretion of the court, be . . . set for Alternative Dispute Resolution . . . .” Super. Ct. Sac. County, Local Rules, rule 15.10(A), Cal. Local Probate Rules (Cont.Ed.Bar 2007), p. 34-9; “At the time of the ADR assignment, a party may . . . object to the need for ADR … the court at any time may order the parties to ADR as a method of attempting to resolve the matter.” Super. Ct. San Diego County, Local Rules, rule 4.22.14(D), Cal. Local Probate Rules (Cont.Ed.Bar 2007), p. 37-56; and “unless otherwise ordered, any contested probate matter set for an evidentiary hearing or trial shall be referred to ADR . . . .” Super. Ct. San Mateo County, Local Rules, rule 4.1(D), Cal. Local Probate Rules (Cont.Ed.Bar 2007), p. 41-9. Back

3 Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536. Back

4 In re Alpers’ Estate (1967) 251 Cal.App.2d 40, 45; Burch v. George (1994) 7 Cal.4th 246; Prob. Code, section 15203. Back

5 Lange v. Schilling (2008) 163 Cal.App.4th 1412, 1417; Frei v. Davey (2004) 124 Cal.App.4th 1506, 1519 (citing Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 433); Burch v. George, supra, 7 Cal.4th at p. 254; Code Civ. Proc., section 1775; Fam. Code, section 3170. Back

6 See Lange v. Schilling, supra, 163 Cal.App.4th at pp. 1417-1418; Frei v. Davey, supra, 124 Cal.App.4th at p. 1520; Burch v. George, supra, 7 Cal.4th at p. 254. Back

7 Prob. Code, section 21102; Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134; Estate of Russell (1968) 69 Cal.2d 200, 205;Sefton v. Sefton (2012) 206 Cal.App.4th 875, 879-880; Estate of Hilton (1988) 199 Cal.App.3d 1145, 1168; see also Prob. Code, section 16000. Back

8 Code Civ. Proc., section 1775, subd. (b). Back

9 Code Civ. Proc., section 1775, subd. (c). Back

10 Ibid. Back

11 Ibid. Back

12 Ibid. Back

13 Code Civ. Proc., section 1775(d). Back

14 Jeld-Wen, Inc. v. Superior Court, supra, 146 Cal.App.4th 536; see Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 270 (discussing the voluntary nature of mediation); see Garcia v. Santana (2009) 174 Cal.App.4th 464, 475-476 (discussing access to justice concerns generally and fee shifting concerns specifically); see In re Estate of Herold (2008) 162 Cal.App.4th 983, 991 (discussing the policy of avoiding forfeitures in the no contest clause context). Back

15 See note 2, supra. Back

16 Contrary to the rules in California, local probate rules of court in a number of counties in other states permit the bench officer to order the parties to mediation. See the following rules of court for certain counties in New Jersey, Illinois, Ohio, Hawaii, Oregon, South Carolina, Arkansas, North Carolina, Alaska and Georgia: N.J. Ct. R. 1:40-12; IL R 4 CIR Rule 12-2; IL R 17 CIR Rule 2.08; IL R 19 CIR Rule 14.28; IL R 20 CIR Eligible Actions; OH R Stark Prob Local Rule 79.4; OH R Lake Prob Rule 16; OH R Summit Prob Rule 98.1; OH R Allen Prob Rule 16; OH R Cuyahoga Prob Rule 16.1; OH R Wood Prob Rule 16.02; HI R Prob EX A Mediation Rule 1; OR R Marion Rule 12.175; OR R Multnomah Rule 12.045; SC R Prob CT Rule 5; Ark. Code Ann. § 16-7-202 (West); N.C. Gen.Stat.Ann. § 7A-38.3B (West) (North Carolina does not have a separate probate court, so probate matters are handled by the superior court); AK R Prob Rule 2; 2012 Georgia Court Order 0203 (C.O. 0203) (although probate matters are not explicitly included in the list of cases that may be referred to ADR, section 1.4 of the court order addresses the appointment of neutrals in probate courts). Back

17 Jeld-Wen, Inc. v. Superior Court, supra, 146 Cal.App.4th 536. Back

18 Id. at p. 539. Back

19 Id. at p. 543. Back

20 Id. at p. 540. Back

21 Id. at p. 543. Back

22 Lange v. Schilling, supra, 163 Cal.App.4th at p. 1417; Frei v. Davey, supra, 124 Cal.App.4th at p. 1516; Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1100. Back

23 Lange v. Schilling, supra, 163 Cal.App.4th 1412. Back

24 Id. at p. 1418. Back

25 Id. at p. 1417 (quoting Leamon v. Krajkiewcz, supra, 107 Cal. App.4th at p. 433). Back

26 U.S. Const., 1st Amend.; Cal. Const., art. I, section 3; Garcia v. Santana, supra, 174 Cal.App.4th 464; Boddie v. Connecticut (1971) 401 U.S. 371, 375-376. Back

27 Gov. Code, section 68630(a). Back

28 Garcia v. Santana, supra, 174 Cal.App.4th 464; Jara v. Municipal Court (1978) 21 Cal.3d 181, 184. Back

29 See Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 95-96. Back

30 See Donahue v. Donahue (2010) 182 Cal.App.4th 259, 273-274. Back

31 Roldan v. Callahan & Blaine, supra, 219 Cal.App.4th at p. 95. Back

32 Pinnacle Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 246. Back

33 McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 87. Back

34 See In re Alpers’ Estate, supra, 251 Cal.App.2d 40, 45 (upholding a condition in a will); see also Burch v. George, supra, 7 Cal.4th 246 (upholding a no contest clause). Back

35 Burch v. George, supra, 7 Cal.4th at p. 255 (“Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the testator’s intentions that control, and a court ‘must not rewrite the [testator’s] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator’s] unequivocally expressed intent from the reach of the no contest clause,'” quoting Estate of Kazian (1976) 59 Cal.App.3d 797, 802). Back

36 Hartog, Cal. Estate Planning (Cont.Ed.Bar 2009) section 6.17.B. Back

37 A beneficiary’s consent to the terms of the trust instrument, which would effectively be a waiver to his/her right to bring forward a trust contest during the 120-day contest period, does not violate public policy. See Civ. Code, section 3513; Burch v. George (1994) 7 Cal.4th 246, 254 (holding that “[n]o contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator.” Since a no contest clause allowing a settlor to prevent litigation between beneficiaries under his/her trust or will is valid in California, it follows that a beneficiary waiving the right to contest the trust during the 120-day contest period permitted under Probate Code section 16061.7, would not be the type of law established for a “public reason” that is unwaivable). Back

38 Diaz v. Bukey (2011) 195 Cal.App.4th 315, as mod. on den. of rehg. Jun. 8, 2011, review granted and opn. superseded, (2011) 125 Cal. Rptr.3d 610. Back

39 Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419; Prob. Code, section 17200. Back

40 For a discussion of issues relating to the inclusion of arbitration provisions in trust instruments, see Thoreen & Barton, Enforcing Arbitration Clauses in Wills and Trusts (2013) volume 19, No. 2, Cal. Trusts and Estates Q. 5. Back

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