In Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, the court denied an award of attorney fees to counsel for an individual who was both the trustee and a beneficiary and who defended litigation challenging a trust amendment that named her as the primary beneficiary.
The plaintiff, a different beneficiary, succeeded in having that trust amendment declared invalid, with the result that she, the plaintiff, was restored as the primary beneficiary. (Id. at pp. 1228, 1230.)
The court held that for the attorney fees of the unsuccessful defendant to be charged to the trust would be, in effect, to require the prevailing party to finance the litigation of the losing party. (Id. at p. 1230.)
In Whittlesey v. Aiello (2002) the trial court denied an attorney's request for reimbursement from trust funds for fees incurred representing the trustee in the unsuccessful defense of a trust amendment that changed the allocation of benefits. (Whittlesey,supra, at p. 1224.)
The appellate court affirmed, holding the trustee's participation in the litigation between competing beneficiaries did not benefit the trust, and an award of fees from trust funds would be inequitable because it would be, in effect, an award from the beneficiary who had successfully challenged the amendment and was entitled to the trust funds. (Whittlesey,supra, at pp. 1224, 1227, 1230-1231.)
The trustee who retained the attorney to defend the contested trust amendment was the primary beneficiary under the contested amendment; after the trustee's death, the successor trustee kept the attorney on. (Whittlesey, 104 Cal.App.4th at p. 1228.)