To my surprise, the U.S. District Court denied Donald's petition to be rescued, citing the "Probate Exception."  What is the probate exception?  It is a rule that the U.S. Court will not interfere with probate matters involving distribution of the estates of decedents.  But what about a still living litigant who wants to avoid being skewered and baked by his predatory heirs?  Where does he go for help when the heirs close in for the kill?

Donald needed to get into the U.S. District Court to avoid the summary proceedings which were making it impossible to put forth evidence which would have been normal in a full dress litigation.  Although, as a general rule, petitions from the probate court are turned down because of the probate exception, which, generally speaking, was explained by the United States Supreme court:  “Federal courts of equity have jurisdiction to entertain suits “in favor of creditors, legatees and heirs” and other claimants against a decedent’s estate “to establish their claims” so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” Markham v. Allen, U.S. 490 (1946).

And clarified in 2006:  “when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.” Marshall v. Marshall, 547 U.S. 293 (2006).

This general rule was contested by Dr. Robert Sarhan on behalf of his mother, whom he alleged had been deprived of her due process rights in the state court while she was under the control of a conservator.  Dr. Sarhan sued for Habeus Corpus in the federal court by filing Sarhan v. Rothenberg 2008 WL 2474645 (S.D. Fla.).

The U.S. District Court dismissed Zarhan's petition which claimed that the state court had violated Mrs. Sarhan's due process rights by finding her incompetent and then appointing her a guardian and an attorney.  Sarhan asked the court to restore to his mother her constitutional rights and return her property to her.  The court dismissed the case under the probate exception as they did to Donald.  The position of the U.S. Court is that plaintiff's do not have the right to remove into the federal court the res over which a state court is exercising control.  That is the sort of maneuver that the probate/domestic-relations exception is intended to prevent.” Struck v. Cook County Pub. Guardian, 508 F.3d 858 (7th Cir.2007).

This position is contrary to the public good.  The probate exception is about distribution of the assets, not care of the elderly.  Since Donald is being abused by the court system, by having his property taken away from him while he is alive, he should be able to find refuge in the U.S. District Court.  If not, where can an elderly person go when they become victim to the ongoing, endemic abuse of the elderly, often perpetrated and facilitated by the state probate court?