Bank of Stockton v. Wemyss

This is an appeal from a probate order made in the course of administration of a conservatorship. The primary question is whether the conservator may, with court approval, make gifts of principal to the conservatee’s next of kin.

Appellant, a son of the conservatee, invokes Estate of Christiansen, 248 Cal.App.2d 398 [ 56 Cal.Rptr. 505 ], a decision sustaining permissibility of judicially supervised gifts of principal by the guardian of an incompetent’s estate. Respondent, the conservator, argues that Christian-sen applies solely to guardianships, not to conservatorships; that Probate Code section 1856, governing conservatorships, permits gifts only from surplus income.

The conservator is wrong. Christiansen authoritatively construed the Probate Code provisions governing the guardianship of incompetents’ estates; held that these statutes recognize the probate court’s power to apply general equitable principles, including the traditional “substituted judgment doctrine,” which permits the court to authorize transfers of property (i.e., income or principal) which the ward himself would have made had he been competent to act.

Turning to the conservatorship statutes, we find…