Look for Mild Cognitive Impairment in California Trust and Estate Disputes

Mental incapacity and undue influence are the most common theories used to try to invalidate wills, trusts and beneficiary designations in California and elsewhere.  Occasionally, the subject in a trust and estate dispute has a thorough cognitive evaluation performed contemporaneously with his or her estate planning change.  But, more often than not, the medical record is fragmentary.

In a prior post, we discussed the recurring issues that come up in cases involving Alzheimer’s disease.   Dr. Charles Schaffer, a Sacramento forensic psychiatrist, recently sent me an article entitled “Protecting the Health and Finances of the Elderly with Early Cognitive Impairment,” published this year in the Journal of the American Academy of Psychiatry and the Law.  The article focuses on mild cognitive impairment and early Alzheimer’s disease.  The relatively subtle nature of these two medical conditions makes their impact on estate planning decisions hard to fathom. Continue Reading

Co-Trustee Conflict Fuels California Trust Litigation

Hands TiedCalifornia trust litigation often stems from disagreements and hostility among family member co-trustees.  Rather than picking one of their kids to serve as sole successor trustee when they die or become incapacitated, Mom and Dad often appoint two or more of their children to act together as successor co-trustees.

Having more than one child serve as co-trustee can work out well or turn into a nightmare.  In this post we’ll discuss the challenges associated with sibling co-trustees and how controversy might be avoided. Continue Reading

Courts Should Read Elder Abuse Act Broadly to Stop Wrongdoers

Stop SignCalifornia’s Elder Abuse and Dependent Adult Civil Protection Act is elastic enough to encompass claims arising from sharp insurance sales practices, even when elders do not pay anything directly to the agents.  So concluded the First District Court of Appeal earlier this month in Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) ___ Cal.App.5th ___.

The Mahan opinion provides a helpful historical overview of the Elder Abuse Act in addition to affirming the long reach of the protective statute.  As elder abuse claims become increasingly common in California trust and estate litigation, this will be an often-cited case. Continue Reading

Constructive Trusts Can Catch Wayward Trust Assets

Businessman running with butterfly net chasing money which is flying in the air. Finance business concept.

Trustees in California trust disputes should not overlook the power of the constructive trust remedy as a way to recover errant trust assets.  That’s a takeaway from Higgins v. Higgins (2017) __ Cal.App.5th __, an opinion in a trust litigation case published last week by the California Court of Appeal.

A Los Angeles Superior Court trial judge found a “clear moral obligation” on the part of Lupe Higgins to return several hundred thousand dollars to the Higgins Family Trust, but could not find a legal obligation, so the judge apologized to the Higgins family for being powerless to restore the funds.  The appellate court did not like the sound of that music and came to the rescue, ruling that the trial court had discretion to compel Lupe to transfer the money to the trustee of the Trust. Continue Reading

California Courts Must Examine Outgoing Trustee’s Assertion of Attorney-Client Privilege

Magnifying GlassOne challenge that California trustees face is the prospect that confidential attorney-client communications will pass to successor trustees if they resign or are removed from office.  The attorney-client privilege belongs to the client, but the client is the office of the trustee, not the incumbent who holds that office.  Hence, the successor trustee generally gets to see the privileged communications of the predecessor, as the California Supreme Court explained in Moeller v. Superior Court (1997) 16 Cal.4th 1124.

A new opinion from the Court of Appeal, Fiduciary Trust International of California v. Klein (2017) 9 Cal.App.5th 1184, further shows the insecure nature of the attorney-client privilege in the context of California trust administration and may lead successor trustees to be more aggressive in seeking privileged communications of former trustees. Continue Reading

Standing Up to Your Siblings: Who Can Bring a Financial Elder Abuse Claim?

Pick meWhile financial elder abuse is a serious problem in California, not just anyone can sue to protect an abused elder.  This is especially true if the elder does not want to bring suit in the first place.  On April 19, 2017, the California Court of Appeal reinforced an important issue related to standing to bring financial elder abuse claims in the case of Tepper v. Wilkins (2017) __ Cal.App.5th __.  While an elder is still alive, only the elder or a qualified “personal representative” has standing to file suit for financial elder abuse. Continue Reading

Rapid Increase in Sacramento Conservatorship Cases

 New conservatorship cases in Sacramento County Superior Court have risen sharply over the past three years.  Judge Steven M. Gevercer, who presides in Department 129 (the Probate Division), presented startling numbers at a March 21, 2017 lunch of the Sacramento County Bar Association’s Probate and Estate Planning Section.  The panelists, including the judge and veteran court staff, spoke on “Issues Arising in Conservatorship Cases.”

According to Judge Gevercer, in Fiscal Year 2014 (ending June 30, 2014), there were 238 new conservatorship cases filed in Sacramento.  The number rose to 287 new filings in Fiscal Year 2015 and 333 in Fiscal Year 2016.  This amounts to a whopping 40 percent increase in conservatorship cases over the most recent three years. Continue Reading

California Supreme Court Clarifies Creditor Access to Spendthrift Trusts

On March 23, 2017, at the request of a certified question from the U.S. Ninth Circuit Court of Appeals, the California Supreme Court answered the age-old question – “what gives”?

That is to say, what gives – the impenetrable wall of a spendthrift trust or the ability of a bankruptcy trustee to tap trust funds for the benefit of the bankruptcy estate?  The answer is neither really, but our state Supreme Court did clarify the appropriate reach of creditors into trust-protected assets in light of what the Ninth Circuit observed as “opaque” statutory provisions in the California Probate Code. Continue Reading

Pro Bono Estate Planning Clinic Starts in Sacramento

Pro BonoIn a Prince-themed blog last spring, we used the singer’s untimely death to make the point that “you don’t have to be rich” to need an estate plan.  While the litigation surrounding Prince’s $100-300 million estate grinds on, as well covered in the Star Tribune, here in Sacramento there’s a new pro bono Estate Planning Clinic to help low income residents prepare estate plans. Continue Reading

Just the FAQs: California Trust and Estate Litigation’s Greatest Hits, Part 1

FAQsIn our Sacramento trust and estate litigation practice there are several questions that come up over and over again.  In many instances, these questions are the building blocks of our practice that lead to more complicated questions that sometimes require the filing of a lawsuit to answer.  As a starting place, below are some of the more common questions we receive from trustees and from beneficiaries. Continue Reading

LexBlog