Reading Your Brother's Mail

Mota, the youngest daughter of Ponce (deceased) accused her brother’s of stealing money from their father “within hours of his death.” When the successor trustee petitioned the court for an order of distribution, Ponce objected on the basis that since some of her brothers had already received a “distribution” from their father, their distribution should be decreased by the amount to their self-help.

To that end, Mota sought discovery of financial records from her brother. Her brother objected. Mota moved to compel discovery and the trial court denied the motion. The appellate court overturned the trial court’s order denying the discovery. The court stated two simple discovery rules:

Two simple discovery rules:

1. If a beneficiary files an objection to an account, the beneficiary can conduct discovery – even from a co-beneficiary.
2. If a beneficiary does not object (or otherwise put a fact in dispute), discovery is not proper:


“[T]here is no question but that the discovery procedures found in the Code of Civil Procedure are available for use in probate proceedings.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987 (Forthmann).) This is so because the Probate Code incorporates the discovery provisions in the Civil Discovery Act. (§ 1000 [“[e]xcept to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings . . . apply to, and constitute the rules of practice in, proceedings under this code” (italics added)]; Code Civ. Proc. § 2016.010 et seq.) As a result, parties to probate proceedings “are entitled to conduct discovery — e.g., depositions, interrogatories, requests for admissions, etc.” (Ross et al., Cal. Practice
Guide: Probate (The Rutter Group 2006) ¶ 15:445, p. 15-118.)

A beneficiary who objects to a trustee’s accounting is entitled to conduct discovery. (Forthmann, supra, 97 Cal.App.4th at pp. 987-989; Coberly v. Superior Court (1965) 231 Cal.App.2d 685, 690.) In Forthmann, trustees filed a petition for approval of an accounting. Without filing any objections, a beneficiary sought a continuance to conduct discovery to evaluate whether to object to the accounting. (Forthmann, at p. 981.) The trial court denied the beneficiary’s request for a continuance and approved the accounting. (Id. at p. 980.) The appellate court affirmed. (Id. at p. 985.) It held “the filing of a formal objection or response is a necessary predicate to the conduct of any discovery with respect to the trustee’s interim accounting. Absent an objection or response, even if made only on information and belief, there is no issue joined by which the relevancy of any proposed discovery may be judged.” (Id. at p. 988.) A corollary of the Forthmann rule is that a beneficiary, having filed formal objections to a trustee’s petition, may conduct discovery relevant to those objections.

Unlike the beneficiary in Forthmann, Mota’s objections created an issue of fact to be adjudicated by the court: Whether Villalobos, Marcos, and Ponce stole money from the Trust. Accordingly, she was entitled to conduct discovery relevant to that issue. Villalobos concedes as much in his brief: He notes the “filing of a formal objection or response is a necessary predicate to the conduct of any discovery.” It does not follow, then, that Mota — having objected to the Distribution Petition — could not conduct discovery relevant to her objections.

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