Category: Evidence

Subscribe to Evidence RSS Feed

Showdown at the O.K. Corral – The Battle of the Omitted Heirs

Providing for your children is one of the primary purposes of estate planning, but what happens to your carefully crafted trust if you had children you did not know about when you created the trust?  Or, what if you have children after you create your trust but never get around to amending the trust to … Continue Reading

Clear and Convincing Evidence Standard Continues to Apply in California Appeals

Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard. In Conservatorship of O.B. (2020) ___ Cal.5th ___, the Supreme Court held that “when reviewing a finding that a fact has been proved … Continue Reading

Home Sweet Home – California Legislature Aims to Safeguard Conservatee Residences

Effective January, 1, 2020, the Legislature changed California conservatorship law with respect to the personal residences of conservatees.  Senate Bill 303 attempts to protect conservatees by making it harder to relocate them from and sell their residences.  Proponents argued that existing law made it too easy for conservators to liquidate the homes of conservatees.  The … Continue Reading

California Courts May Invalidate Right of Survivorship in Joint Accounts

Often an aging parent will add an adult child to the parent’s account as a joint holder to assist with asset management or bill payment.  However, this may lead to an unintended result in California when the parent dies.  The child, as surviving account holder, may get all of the account proceeds even if the … Continue Reading

Mental Capacity Standards in California Civil Litigation

What mental capacity standards apply in California civil litigation?  Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville.  I’ll offer highlights here. Short answer: it depends.  The mental capacity standard varies depending on the setting.  The policy rationale for the different standards is elusive, so as … Continue Reading

It’s Rigged: How Our California Trust and Estate Litigation Blog Was Dragged into Election 2016

As a trust litigation attorney in Sacramento, I seldom see overlap between bare knuckle political campaigns and family inheritance disputes. So, on the eve of a big election, it seems fitting to report on a new case that bridges political and family conflicts.… Continue Reading

New Guidance on Role of Mental Health Experts in California Undue Influence Cases

As a trust litigation attorney in Sacramento, I often make or defend against allegations of undue influence in the context of a trust amendment that favors one beneficiary over another. In this setting, what is the proper role of a mental health expert, such as a forensic psychiatrist, with regard to evaluating undue influence? Last … Continue Reading

Court in California Trust Contest Invalidates Transfer to Drafting Attorney

  “An ethical estate planning attorney will plan for his client, not for himself.” With those words, the California Court of Appeal recently ripped Southern California attorney John LeBouef for taking advantage “of an elderly and mentally infirm person to enrich himself.”  In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the … Continue Reading

Opening the Curtains of Attorney-Client Privilege

The attorney-client privilege, a bedrock principle of our legal system, protects confidential communications between clients and their attorneys, and the lawyer’s duty to preserve client confidences generally continues after the death of the client. Under the California Business and Professions Code, lawyers must “maintain inviolate the confidence, and at every peril to himself or herself … Continue Reading

What Role Should Mental Health Experts Play in Undue Influence Cases?

At the start of trial recently in San Joaquin County Superior Court in Stockton, I sparred with opposing counsel over the role of the retained mental health experts with regard to testimony on undue influence. The contestant alleged that her brother unduly influenced their parents to disfavor her when they amended their trust. Sister retained … Continue Reading
LexBlog