Estate of Hammer

In Estate of Hammer (1993) 19 Cal.App.4th 1621, the court held the executor of a will who was engaged in a bitter divorce from the sole beneficiary should have been removed at the request of the beneficiary. The Hammer court chronicled the ways in which the executor had failed to perform his statutory duties, mismanaged estate assets and breached his fiduciary duty to the beneficiary. (Estate of Hammer, supra, 19 Cal.App.4th at pp. 1635 et seq.) In addition, in the marital dissolution proceedings, the executor was asserting a claim adverse to the estate in that he was alleging the beneficiary made an oral gift to him of half of her multi-million dollar trust fund, from which she had personally paid $750,000 to a law firm hired by the executor to maintain an action on behalf of the estate; the executor claimed he had a personal interest in the estate's litigation against the law firm arising out of his interest in the beneficiary's separate trust fund. The Hammer court observed: "In the instant case, we do not merely have the existence of a serious conflict of interest, but there is evidence, as acknowledged by the trial court, from which it could be concluded that the executor has exploited his position as executor to benefit his own selfish interests at the expense of the estate and the beneficiary. In other words, there is clear evidence in this case from which it could be concluded that the executor had already made his 'choice.' Under all the circumstances of this case, the trial court abused its discretion in failing to remove the executor on the ground of conflict of interest arising out of unrelated litigation against the estate's beneficiary." (Hammer, supra, 19 Cal.App.4th at p. 1642.)