Is it worthwhile to appeal a probate court loss?

The disappointment of losing a trust contest, will contest or other probate petition often immediately leads clients and lawyers to ask, "should we appeal?" The answer -- like most answers in the law -- is, "it depends."

An appeal is not a second bite at the apple. The appellate courts do not hold another trial. Instead, they review the lower court's decision for legal errors and -- in rare circumstances -- factual error. But the latter is uncommon because the appellate courts consider trial judges to be in the best shoes to determine the credibility of witnesses and weigh the facts. Indeed, the Courts of Appeal presume, "that the record contains evidence to support every finding of fact." Marriage of Fink, 25 Cal. 3d 877, 887 (1979). As a practical matter, that means the appealing party has the burden to disprove that the trial result was correct.

So, if you're banking on the Court of Appeal to look at your star witness' testimony in a light more favorable than did the trial court, reconsider whether it's worth the cost. But if the judge made a factual finding for which there was no supporting evidence or granted a motion for summary judgment when the evidence was disputed, an appeal may be worth the time, effort and expense. For example, if a trial judge found that a trustee had committed breaches of their fiduciary duty by removing money from a trust account, but no party submitted statements showing that money being moved, then an appeal could be fruitful.

If a party thinks the trial court judge committed an error of law -- perhaps by misreading a statute, contradicting a binding case, waiving an unwaivable notice requirement, or issuing an order in excess of their jurisdiction -- then an appeal might be the right choice. The California Court of Appeal is best suited to review and correct errors of law that affected the outcome of a case. For example, an appeal would be well taken if a trial judge grants a motion to quash a trust petition for lack of personal jurisdiction but does not consider the correct "minimum contacts" factors set out by the U.S. Supreme Court.

However, even a clear legal error may not be enough. A party must also show that, had the trial court not made that mistake, the result would have differed. This is a steep hill to climb.

If you have questions about whether to appeal a ruling from a probate court, you should contact counsel with experience litigating probate and trust issues at the appellate level.

So you've decided to appeal. Now what?

An appeal is not the place to reuse what you've submitted in the trial court and hope for a different result. Indeed, the California Courts of Appeal have made clear that copy-pasting your trial court filings is unlikely to yield a positive result. As one panel put it: "The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them into an appellate brief is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value." In re Marriage of Shaban, 88 Cal. App. 4th 398, 410 (2001).

A party might improve their chances on appeal by retaining counsel experienced in litigating at the appellate level. This sometimes means retaining someone other than the trial attorney to take the matter to the higher courts. Often, consulting with an appellate practitioner can provide an objective view of a party's chances on appeal. One Court of Appeal has said: "Trial attorneys who prosecute their own appeals ... may have 'tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." Estate of Gilkison, 65 Cal. App. 4th 1443, 1449-50 (1998).

So if a litigant has determined they want to explore an appeal, seeking out an experienced appellate practitioner is the safer route.

That is even truer when it comes to appeals from probate court. In California, probate courts have significant leeway in the orders they make. Indeed, the Probate Code authorizes the court to make any orders it believes are necessary to dispose with a petition (Cal. Prob. Code 17206). This is because probate courts are courts of "equity," meaning their job is to issue orders that are fair and protect all parties involved while still following the confines of the law.

When seeking appellate counsel, a party must act quickly. This leaves sufficient time for the appellate counsel to provide a realistic assessment of the case. Further, a failure to timely file a notice of appeal is a jurisdictional bar -- meaning the appellate courts are prohibited from reviewing an issue that wasn't appealed by the deadline. Ensuring that a notice of appeal is filed on time -- and contains the right language to appeal the correct issues -- is crucial to ensuring an appellate matter is not dead on arrival. What is more, certain probate orders are immediately appealable -- meaning that the clock starts to run the second the judge issues their order, rather than after trial has concluded.

Emotions run high in probate disputes. And often, the family fortune is at stake. An objective appellate eye would be a client's best bet if the trial went the wrong way. 