No Shortcuts in Contested Probate: Why Estate of Bennett Requires an Evidentiary Hearing Before Rescinding a Settlement

When a settlement agreement or assignment involving an estate is challenged, can a probate court decide the dispute on paper alone — declarations, exhibits, and argument — or does due process demand live testimony? The Fourth District Court of Appeal answered that question squarely in Estate of Bennett, 163 Cal. App. 4th 1303 (2008), and the rule it established remains a trap for the unwary in California probate litigation.

The Setup

A creditor's assignee held a decades-old judgment against a decedent. After settling a fraudulent-transfer lawsuit against the decedent's ex-wife and children, the assignee obtained a written settlement and an irrevocable assignment of the family's inheritance rights in the estate. Years later, once probate proceedings opened, the family moved under Probate Code section 11604 to set aside and rescind that settlement — arguing inadequate consideration, fraud, duress, and mistake of fact.

Both sides submitted competing declarations. The probate court reviewed the paperwork, took the matter under submission, and granted the motion by minute order — without ever holding a hearing where witnesses testified and could be cross-examined.

The Core Holding: Declarations Aren't Enough in Contested Probate Matters

The Court of Appeal reversed, reaffirming a rule that surprises litigants who are used to civil motion practice: in probate, affidavits and declarations generally cannot be used as evidence once a proceeding becomes contested. Code of Civil Procedure section 2009 permits affidavits to decide ordinary civil motions, but Probate Code section 1022 limits that practice to uncontested proceedings. The court traced this rule back to Estate of Fraysher (1956) and Estate of Wallace (1977), rejecting the argument that section 1000's general incorporation of civil procedure rules overrides the more specific probate limitation.

There is a narrow exception: if neither party objects and both sides rely on affidavits to make their case, the restriction doesn't apply. But here, the assignee expressly argued — in its opposition papers and at the hearing — that the conflicting declarations created factual disputes requiring a full evidentiary hearing. That preserved the issue for appeal, and the failure to hold one was reversible error.

Why the Error Wasn't Harmless

The family argued that even without a hearing, the undisputed record supported the result. The court disagreed, for reasons worth flagging for practitioners:

• Statute of limitations under section 366.2 didn't bar the claim, because it had already been reduced to a judgment before the decedent died.

• Section 9301 (barring creditor enforcement against estate assets outside the claims process) didn't apply, because the underlying suit sought to unwind an allegedly fraudulent transfer — not to collect on the judgment directly.

• Consideration for a settlement doesn't fail merely because the underlying claim later proves weak. Settling a bona fide dispute is valid consideration even if the settling party turns out to have overestimated the claim's strength — here, the family conceded they settled partly because they were "positive" the decedent owned no property, a factual assumption that itself required testing at a hearing.

• Duress likewise presented disputed fact questions unsuitable for resolution on paper.

Probate Courts' Broad Equitable Reach Under Section 11604

The court also addressed — for guidance on remand — how far a probate court's power extends once it finds a settlement or assignment defective. Section 11604 lets the court inquire into the circumstances and consideration behind a transfer or agreement and either refuse distribution or order distribution on terms it finds just and equitable if the consideration was grossly unreasonable or the agreement was obtained through duress, fraud, or undue influence.

Relying on Estate of Stanley (1949) and later authority, the court confirmed that a probate court sitting on such a motion has the same equitable jurisdiction it would have sitting in equity generally — it can determine all aspects of a claim ancillary to the estate, not merely adjust distribution percentages. While many cases under this statute simply reallocate shares (see Burchell v. Strube, Estate of Freeman, Estate of Peterson), others have gone further and denied distribution to an assignee entirely (Estate of Simmons, 1963). The upshot: after a proper evidentiary hearing, a probate court has discretion to either modify the agreement or rescind it outright.

Practice Points

1. Treat a motion under section 11604 as contested litigation, not a law-and-motion matter. If the opposing declarations create any factual conflict, demand — and be prepared to conduct — a live evidentiary hearing. Submitting only declarations, or failing to object to the other side's declarations, can waive the issue.

2. Preserve the evidentiary-hearing objection on the record, both in written opposition and at the hearing itself, the way the assignee did here. Silence risks forfeiting reversible error on appeal.

3. Don't assume a favorable declaration record wins the motion. Even seemingly undisputed factual admissions (like a party's belief about the decedent's assets) can still require cross-examination before a court relies on them to rescind an agreement.

4. Remember the limits of appellate reply briefs. The court also declined to consider new arguments raised for the first time in the reply brief — a reminder that all substantive positions belong in the opening brief.

Estate of Bennett remains good law on this point and is frequently cited for the proposition that declarations alone cannot resolve a contested probate motion. Practitioners handling estate disputes involving settlements, assignments, or challenges to distribution should build their case — and their hearing strategy — accordingly.

This post discusses general principles of California probate procedure and is not legal advice. If you are involved in a dispute over an estate settlement or assignment, consult a licensed attorney about the specific facts of your situation.