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

Right of Survivorship in Joint AccountOften 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 parent wanted them shared among a group of beneficiaries.

Provisions of the California Probate Code set ground rules for the treatment of joint accounts, but the statutory language is not crystal clear.  In Placencia v. Strazicich (2019) 42 Cal.App.5th 730, the Court of Appeal clarified that the intent of the person who established the account is paramount such that the surviving account holder’s presumed right of survivorship can be overcome by just about any sort of admissible evidence, as long as it is clear and convincing.  The survivor just may have to share the piggy bank. 

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 our clients present issues we focus on what standard governs instead of pondering why we have a hodgepodge of rules.

VotingAs 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.

Mental Health DoctorAs 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 February I wrote on this issue, discussing my recent experience in the probate department of San Joaquin County Superior Court.

An article entitled “Assessing Undue Influence,” in the September 2016 issue of The Journal of the American Academy of Psychiatry and the Law, takes up the subject. Written by two psychiatrists, Daniel A. Plotkin and James E. Spar, and an attorney who litigates trust/estate disputes, Howard L. Horwitz, the article seeks to sharpen the focus for mental health professionals who take the witness stand in undue influence cases in the context of testamentary instruments, such as wills and trusts.

Hand in the Money Jar

“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 invalidation of John Patton’s will and trust, which purportedly left Patton’s $5 million estate to LeBouef.  The ruling illustrates the Probate Code’s prohibition of donative transfers to categories of persons who, because of their relationship with the creator of a trust, might exercise undue influence. The law, in particular, presumes that an attorney who drafts a trust in which the attorney is named as a beneficiary does so without the client’s knowledge and consent. The opinion also shows how contestants can use evidence of other “bad acts” to bolster their cases if those other acts show a common plan or scheme.

A Stack of PapersOnce your petition has been filed in the probate department of the Superior Court of California, and you are engaged in full-on “trust litigation,” what happens next? In most instances, it will be time to prepare for trial through a process called “discovery.” Discovery is the interval between when you file your petition and the date set for trial, when you are able to discover information that helps (or may hurt) your case.

California Probate Code section 1000 applies the Code of Civil Procedure to cases under the Probate Code, including the civil discovery tools. In general, these tools fall into four categories (1) Requests for Admissions; (2) Requests for Production of Documents; (3) Interrogatories; and (4) Depositions.

Opening Curtains_EditThe 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 to preserve the secrets, of his or her client.”

To what extent does the attorney-client privilege apply when there is a trust contest, will contest, or a fight over the interpretation of estate planning documents? Usually, the attorney who drafted the questioned document(s) is a central witness, for example, as to mental capacity or undue influence. Estate planners are often unfamiliar with the rules that apply when their work product is subject to litigation.

Mental Health ConceptAt 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 a neuropsychologist to testify at trial on the subject of undue influence and Brother retained a forensic psychiatrist. Not surprisingly, the experts took divergent views on the case.

The question, which came before the judge in a motion in limine (i.e., pre-trial motion), was whether the retained experts should be allowed to testify on the ultimate issue of whether Mom and Dad were unduly influenced. Sister wanted her expert to be able to opine that her parents were victimized based on the expert’s review of the medical records and deposition transcripts. The judge agreed with Brother’s argument that, while the experts could testify on the issue of Mom and Dad’s vulnerability to undue influence, expert testimony on the issue of whether undue influence actually occurred would be excluded and that matter instead would be left for the judge to decide after hearing all the evidence.