April 19, 2011

McMackin v. Ehrheart — Delaying the Opening of Probate Might Result in Equitable Estoppel

In McMackin v. Ehrheart, the Second District Court of Appeal held that, “depending on the circumstances of a case, the doctrine of equitable estoppel may preclude a party from asserting section 366.3 as a defense to an untimely action where the party’s wrongdoing has induced another to forbear filing suit.”  (Emphasis added.)  The Court used the word “may” because the issue before the Court of Appeal was fairly narrow, i.e. whether a preliminary injunction should be upheld.  After affirming the granting of a motion for preliminary injunction, the Court said, “The finder of fact will determine the facts and whether equitable estoppels precludes application of the one-year limitations period of section 366.3”.

The Court also chastised both sides for what it deemed “delay”.  Specifically, the Court said, “Here, both sides delayed: The estate was opened three years four months after the decedent’s death, and the claimant filed suit almost two years later.”  While the Court did not overtly say it, the Court seemed to imply that the personal representative should not have sat around for 3 years before opening a probate.

The Take Away: If you represent a personal representative, you might think twice about waiting until after the period of limitations on a claim expires before opening a probate.  Equitable estoppel may preclude application of section 366.3.

Steve Braccini is an Associate in Hopkins & Carley’s Trust & Estate Litigation department.
To see more articles like this, visit our TELP blog.