Boot Camp_RevisedThe Sacramento County Bar Association’s Probate and Estate Planning Section hosted its first ever “boot camp” program on trust and estate litigation on September 20, 2016. As an alternative to the monthly lunch programs, the Section offered a six-hour seminar at its office at 425 University Avenue in Sacramento. The program drew a full house of approximately 80 attendees, ranging from law students to experienced lawyers.

I presented on will and trust contests in California Superior Court and provide highlights from my talk below.

Tracy Potts and Danielle Diebert, from Legacy Law Group, shared insights on pleadings and procedures unique to trust and estate litigation. Ed Corey and Kelly Dankbar, from Weintraub Tobin, spoke on the nuances of financial elder abuse litigation. Judge Steven Gevercer, who currently presides in Sacramento County Superior Court’s probate department, provided a view from the bench on trial advocacy. Dan Spector offered an overview of discovery procedures. Judge Al Dover (retired from the Nevada County Superior Court) and Ed Corey spoke on setting up success in mediation.

I started with a few statistics as to why will and trust contests seem to be on the rise in Sacramento and elsewhere, including our aging population and the associated increase in Alzheimer’s disease.

California will and trust contests erupt when an elder disfavors, or outright disinherits, a family member in an estate plan. While the litigation usually flares shortly after the elder is deceased, sometimes it starts earlier. Indeed, as discussed in an earlier post, the California Court of Appeal in Drake v. Pinkham held that a contestant may have to bring a contest before an incapacitated elder dies under the doctrine of laches.

I reviewed the two primary legal theories used in California to attack the validity of wills and trusts: mental incapacity and undue influence. The law here is tricky.

If the contestant is attacking a will or a “simple” trust document, such as an amendment that changes beneficiary designations to favor Sally over Johnny, the judge will apply the “testamentary capacity” standard in California Probate Code section 6100.5(a)(1), which considers the elder’s ability to understand the nature of the testamentary act and to recall what he/she owns and who his/her family members are. On the other hand, “complex” trust documents are subject to the “contractual capacity” standard in Probate Code section 812, which requires a higher level of mental function depending on the complexity of the document. Under both approaches, the contestant also must prove a mental function deficit that causes significant impairment with regard to the decision in question.

Hence, a walk down the incapacity road usually requires presenting testimony from a mental health expert such as a forensic psychiatrist or neuropsychologist.

Since mental incapacity is tough to prove, many contestants focus instead on undue influence, which California Welfare and Institutions Code section 15610.70 defines as “excessive persuasion” that overcomes a person’s free will and results in inequity. Usually, the contestant bears the burden of proving undue influence by “clear and convincing” evidence. But in some situations, such as transfers to paid caregivers and even perhaps transfers to spouses, the proponent of the document bears the burden of proving the absence of undue influence. Also, the contestant can shift the burden of proof to the proponent by showing that the proponent was in a position of trust with the elder, actively procured the contested document, and unduly profited from it. In other words, if it smells like undue influence, it probably is.

Contestants should consider the theories of fraud and mistake in addition to mental incapacity and undue influence. If Wanda disfavors her son Johnny because she incorrectly thinks he wants to remove her from her Sacramento residence of 50 years and put her in a nursing home, the contestant will want to consider all possible legal theories. Perhaps Wanda’s dementia caused her to lose mental capacity. If Sally whispered falsehoods in Wanda’s ear about Johnny’s intent, Sally may have applied excessive persuasion (i.e., undue influence) or used fraud. And even if Sally was not the instigator of Wanda’s false belief, perhaps Wanda was simply mistaken about Johnny’s objectives for her care.

Pursuing a will and/or trust contest requires seeking out evidence from a wide variety of sources: the lawyer (if any) who drafted the challenged document, the elder’s treating medical providers, home health care workers who can sometimes recall their patients in great detail, and of course friends and family members. Thus, a contestant needs a skilled lawyer and resources to fund the work, and it’s hard to tell at the outset how the facts will come together.