Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes property through undue influence, or who takes property through the commission of financial elder abuse.
While the first two prongs of the statute contain an explicit bad faith requirement, the last one, financial elder abuse, does not. Can double damages be awarded against someone who commits financial elder abuse, even if bad faith is not shown? What if the elder abuse claim rests on the exertion of undue influence?
The appellate court in Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025, ruled that undue influence claims, even when characterized as elder abuse, require evidence of bad faith to justify double damages. In other words, an elder abuse claim cannot be used as a Trojan horse to obtain double damages. Continue Reading