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Estate of James Harvey Bailey

Case Number

20PR00422

Case Type

Decedent's Estate

Hearing Date / Time

Tue, 10/28/2025 - 09:00

Nature of Proceedings

1. Petition for Attorney's Fees 2. Final Distribution

Tentative Ruling

Probate Notes:

Appearances required.

The following is noted for the Court at the hearing:

No Contest Clause Triggered. The proposed distribution differs from the distribution outlined by Decedent’s Last Will and Testament. According to Article IV of the will:

If any person, whether or not related to me by blood or marriage in any way, shall attempt, directly or indirectly, to set aside the probate of my will or oppose any of the provisions, and such person shall establish a right to any portion of my estate, then I give and bequeath the sum of one dollar, ($1.00), only that, and no further interest whatever in my estate to that person.

(Lst. Will. & Test, Art. IV.)

According to this provision, Mitchell Allen Bailey’s share of the estate should be reduced to $1.00, because Mitchell Allen Bailey objected to the admission of the will to probate, and litigated against the admission of the will to probate all the way up to the Court of Appeal.  This constitutes a will contest.

Mitchell Bailey filed objection to this outcome on October 10, 2025. According to the objection, Mitchell Bailey did not contest the will that was ultimately admitted to probate.  Mitchell Bailey cites to Probate Code section 21310 “definitions” of Contest and “Direct Contest” to argue that “the validity of the Will was not challenged so there was no Direct Contest,” implying that Mitchell Bailey did not even file a pleading challenging the will; he merely objected that the petition to admit the will was untimely.

This argument fails for two reasons. One, a written objection is a pleading … period:

 “Pleading” means a petition, complaint, cross-complaint, objection, answer, response, or claim.

(Prob. Code, §21312(d) [emphasis added].)

Two, the pleading constituted a direct contest of the will.  (Prob. Code, §21310)b)(2) [“Direct contest” means a contest that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of the following grounds: . . . (2) Lack of due execution.”].)  The direct contest is obvious from the plain language on the face of the pleading contesting the admission of the will to probate due to a prohibition in Probate Code section 8226 AND a flaw in execution of the will:

Probate Code Section 6110(c)(1)(A) requires that the witnesses be present at the same time that the testator signs the will. If the will does not comply with this requirement, Sub-Paragraph (c)(2) requires that the proponent of the will establish by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will. The Declaration of Thomas M. Mills states that he and Thomas W. Mills were present at the same time that the Decedent signed the Will. However, Objector is informed and believes that the Decedent did not sign the Will in the presence of the witnesses. The Decedent signed the Will on February 12, 2001. The witnesses signed the Will on February 13, 2001. If the Court does not dismiss the Will as untimely, Objector requests that the Court allow him a reasonable opportunity to conduct further discovery to verify the truth of the statements in Mr. Mill's Declaration.

(Obj. of M. Bailey, filed Jul. 9, 2021, at p. 4, lns 10-20 [emphasis added].)

The direct contest was without probable cause, because Mitchel Bailey’s and the Personal Representative knew the will existed, deposited it with the court, and did not seek its admission to probate solely because admission of the will to probate would have significantly reduced Mitchell Bailey’s share of the estate from 100% of over $660,000, to less than $15,000 in securities, and at the time of filing that contest, the facts known to Mitchell Bailey would not cause a reasonable person to believe that there is a reasonable likelihood that the requested relief would have been granted after an opportunity for further investigation or discovery.

Further, the Court of Appeal outlined in great detail that Mitchell Bailey’s objection to the admission of the will to probate was based on a flawed reading of the statute of limitations in Probate Code section 8226. (Bailey v. Bailey (2023) 96 Cal.App.5th 269, 273.)

Thus, the written “Objection” filed by Mitchell Bailey on July 9, 2021, was a pleading, that pleading opposed the admission of the will to probate, that opposition constituted a direct contest, and the direct contest was without probable cause.

Therefore, the Proposed distribution in the Petition for Final Distribution should reduce distribution to Mitchell Allen Bailey to $1.00, according to the plain language of the will.

Attorney’s fees.  In addition to Final Distribution of this estate, the Personal Representative, Michael Hardy, seeks reimbursement for attorney’s fees paid by Olan Mills, II, in pursuit of the admission of the will to probate. 

Since Olan Mills, II is a stranger to the estate, taking only due to a specific gift devised in the will, and since Olan Mills, II is not the Personal Representative of the estate, he is not statutorily entitled to recover any fees pursuant to Probate Code section 10830.  That section only entitles the Personal Representative and/or attorney for same to seek fees.  Petitioner admits at page 3, lines 5-7 of the petition, that “personal representative in this matter did not incur the expenses,” thus cannot recover fees under that statute.

HOWEVER, this Court sits in equity, and it would be fundamentally inequitable to force Olan Mills, II to bear the brunt of the $47,000+ in attorney’s fees for which he is now seeking reimbursement, when 8 other parties will benefit from Olan Mills, II seeking admission of the will to probate. 

The award of attorney’s fees is governed by the "American Rule" that each party bears their own costs.  (Estate of Gump (1982) 128 Cal.App.3d 111, 118.)  This rule equally applies in probate proceedings.  (Estate of Gerber (1977) 73 Cal.App.3d 96, 117.)  As a result of this rule, a party must qualify for, and identify an exception to the rule in order to recover attorney’s fees in probate matters.

The only exception to the American Rule that is relevant under the circumstances in this case, is when a prevailing party succeeds in creating a “common fund” that benefits other similarly situated beneficiaries.  That prevailing party is allowed to recover attorney’s fees from the created common fund in order to prevent the other beneficiaries from benefiting from the prevailing party’s efforts at no cost of their own.  (Estate of Reade (1948) 31 Cal.2d 669, 672.)  As our Supreme Court has outlined the policy in this matter:

The bases of the equitable rule which permits surcharging a common fund with the expenses of its protection or recovery, including counsel fees, appear to be these: fairness to the successful litigant, who might otherwise receive no benefit because his recovery might be consumed by the expenses; correlative prevention of an unfair advantage to the others who are entitled to share in the fund and who should bear their share of the burden of its recovery; encouragement of the attorney for the successful litigant, who will be more willing to undertake and diligently prosecute proper litigation for the protection or recovery of the fund if he is assured that he will be promptly and directly compensated should his efforts be successful. (See In re Estate of Reade (1948), supra at pages 671-672; Winslow v. Harold G. Ferguson Corp. (1944), 25 Cal.2d 274, 283-286; Hornstein, Counsel Fee Awards (1956), 69 Harv.L.Rev. 658, 662.)

(In re Stauffer's Estate (1959) 53 Cal.2d 124, 132.)

But-for Olan Mills, II seeking the admission of the will to probate in this case, the entirety of the estate would have been distributed to Decedent’s sole issue.  Thus, Olan Mills, II could be said to have created a common fund that benefited 8 other parties, none of whom actively participated in this case, or the appeal.

The common fund, however, can only encompass the cash that existed in the estate as of the date of death of Decedent.  (Smith v. Szeyller (2019) 31 Cal.App.5th 450, 460 [“The common fund doctrine applies only to pecuniary benefits; the substantial benefit doctrine applies to both pecuniary and nonpecuniary benefits.”].)  Thus, the substantial benefit doctrine must apply to this case, due to the nonpecuniary nature of much of the estate.

[The substantial benefit doctrine] “permits the award of fees when the litigant, proceeding in a representative capacity, obtains a decision resulting in the conferral of a ‘substantial benefit’ of a pecuniary or nonpecuniary nature. In such circumstance[s], the court, in the exercise of its equitable discretion, thereupon may decree that under dictates of justice those receiving the benefit should contribute to the costs of its production.”
 

(Smith v. Szeyller (2019) 31 Cal.App.5th 450, 460.)

NEW PROPOSED DISTRIBUTION

According to the authority above, it is recommended the Court:

  1. Distribute $1.00 to Mitchell Allen Bailey due to his triggering of the no contest provision in the will.
  2. Order the securities in the estate that would have been distributed to Mitchell Allen Bailey be part of the residue of the estate.
  3. Distribute $20,000 of the residue first to Olan Mills, II in full satisfaction of his specific gift.
  4. Distribute $41,808.74[1] to Olan Mills, II for his portion of the common fund defense and substantial contribution of seeking admission of the will to probate.  Mr. Tardiff’s fees must be paid out of that amount.
  5. Distribute the residue of the estate according to the will, as follows:
    1. 50% to Karen Stevens
    2. 10% to Linda Ellis
    3. 10% to Steve Ellis
    4. 30% in equal shares to the five charities.

[1] The common fund and substantial contribution doctrine takes into account the benefit conferred on Mr. Mills, II also, which must be subtracted from the benefit conferred on others.  The total attorney’s fees claimed by Mr. Mills, II are $47,034.84. Since there are 9 total litigants that benefited from Mr. Mills, II’s efforts, that number was divided by 9, to obtain $5,226.09 in fees assigned per litigant.  That number was then subtracted from the total to obtain what is owed to Mr. Mills, II. (Serrano v. Priest (1977) 20 Cal.3d 25, 35, fn. 5.)

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334

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