Litigation

Mr. Hicken litigates probate, trust and conservatorship cases.  If you have a case already in, or headed for, litigation, your best asset will be an ethical, competent, battle seasoned, attorney who knows his stuff and feels at home in the court room.  You need a litigator – but more specifically, a probate litigator who knows the Probate Code, because trust and probate cases are peculiar from other civil matters. Michael can be that attorney for you, either prosecuting or defending cases involving, but not limited to:

  • Will or Trust Contests
    • Undue influence, fraud, menace, duress or lack of mental capacity
    • Challenge of an entire document or a specific provision
  • Disqualified Donees
  • Elder Abuse
  • Title Claims (Do assets belong to a trust or probate estate or to someone else?)
  • Creditor Claims
  • Fiduciary Accountings
  • Fiduciary Breach of Trust
  • Theft
  • Interpretation of Documents
  • Revocation and Amendments of Documents
  • Non-probate Transfers (by beneficiary or title designation)
  • Spousal Property
  • Family Allowance (support for family of decedent)
  • Conservatorships and Guardianship 

Common Questions:

"If there is a will or a trust, doesn't that settle things?"

"What is there to fight about if there is a will or a trust?"

There can be many contested issues in probate, trust or conservatorship matters.  Contrary to popular belief, a trust is not necessarily kept out of court. Trusts are governed by the Probate Code and are subject to the Probate Court. A trustee, or interested person, may seek court intervention for: instructions; or approval of actions or accountings; or orders to account; and/or resolution of disputes. For years, one Orange County judge, would often comment from the bench on the irony that trusts are designed to avoid the court, yet dozens of such cases are presented to the court on a weekly basis.    

"Are there alternatives to a court trial?"

YES. This is known as Alternate Dispute Resolution.  Parties, through their attorneys, are always free to negotiate a compromise or settlement; and they may consider the following alternatives:

Mediation: Sometimes the assistance of a professional mediator (usually an attorney or retired Judge) can be very helpful.  A meeting with a mediator where attorneys can advocate their case is known as a mediation and is far less expensive and less time consuming than a court trial.  However, mediation is voluntary, requiring the consent of the disputing parties to explore whether the mediator may broker a settlement.  Parties are not obligated to accept a mediator’s recommendation, but a good, experienced mediator can be very persuasive. 

Arbitration: Less common than mediation is an arbitration proceeding which is more restrictive and formal than mediation. It generally involves presentation of evidence by way of documents and testimony, subject to procedural and evidentiary rules, before an arbitrator who will render a decision that may be binding upon the parties, or subject them to other restrictions. Arbitration may also have advantages over trial. 

These alternatives to trial are referred to as “Alternative Dispute Resolution.”  Use of these alternatives early on in a case may save considerable time and money over preparation for a trial.  Other times a case needs considerable discovery and preparation before it is “ripe” for a settlement after the parties feel they have enough information to assess their risk/benefit of going to trial. Each of these alternatives will be considered throughout the course of each case depending upon client’s particular situation and risk tolerance.  

Common Litigation Disputes

  1. Validity of the document; Was there undue influence or fraud?  Is mental capacity an issue? Was there overreaching or self-dealing by a trusted person or someone with an opportunity to take advantage?  Is there a gift to a disqualified donee (fiduciary or care giver)?
  2. Interpretation of document(s)    
  3. Fiduciary compliance with his or her obligations; Fiduciary negligence or self-dealing; Incompetence or unwarranted delay in administration; Fiduciary failure to inform beneficiaries;  Failure to account or insufficient accounting;  Funding or failure to fund a trust;  A surviving spouse’s consumption of assets of a trust intended for the heirs of the deceased spouse
  4.  Assets of a trust or probate or owned by another  
  5. Creditor Claims
  6. Spousal property disputes; Community vs. Separate Property
  7. Heirship (those entitled to distribution)
  8. Non-probate transfers by title or beneficiary designation
  9. Support for decedent’s family
  10. Conservators and Guardians (need vs. other options) and accountability thereof.

 

"While the great majority of all litigated cases result in a settlement, when there is no reasonable settlement available, I take the case to trial.  I have successfully prosecuted and defended numerous cases through trial and secured favorable judgments for my clients.  From beginning to end, I endeavor to keep my clients informed of their options, continually assessing their case from a risk/benefit perspective to allow the client to make informed decisions."--Michael Hicken  

Litigation Attorney’s Role

As litigator, I have two roles:

  1. As counselor, to advise my client of their options, risks and potential outcomes based upon my knowledge and years of experience; and
  2. As advocate, to relentlessly fight for my client.

I ethically fight for my clients in the best and strongest way possible according to their needs, wishes, and risk tolerance, with due consideration for preparation, expense and likely outcome.  I gather facts, develop evidence, and carefully assess my client’s case vs. that of our opponent. I provide counsel and recommendations to allow my clients to be informed of their options and potential outcomes. Ultimately, the client makes or approves all decisions.