Category: Financial Elder Abuse

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Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?

California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of proof? The disfavored sibling or the favored one? Florida courts have decided that dutiful children, and spouses, should not be … Continue Reading

Making Peace in Mediation – A Conversation with Daniel Spector

Daniel Spector has litigated trust and estate cases in Northern California since the early 1990s. He is now focusing his practice on mediating trust and estate disputes across California, working with Judicate West. Dan is a colleague on the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, and I thank … Continue Reading

“Inheritance Forgery” Podcast – Theft from Tigers Averted

Fort Hayes State University in Kansas, home of the Tigers, almost lost a $20 million donation because of a forged codicil (amendment) to the will of Earl Field. Earl was a World War II pilot, successful businessperson, and booster of FHSU. He died in 2013 at the age of 98. The forgery was proven only … Continue Reading

Will California SB 315 Improve Revocable Transfer on Death Deeds?

(Editor’s Notes: Lauren Murvihill is a summer associate at Downey Brand. She is a student at UC Davis School of Law.  In September 2021, after publication of this post, the Governor approved Senate Bill 315.) The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding … Continue Reading

Britney Spears and “Marla Grayson” May Propel Tightened Oversight Over California Conservators

When a California probate court establishes a conservatorship, the conservator is charged with managing the conservatee’s person and/or estate in the conservatee’s best interests. The large majority of professional fiduciaries and family members who become conservators discharge their duties faithfully. Occasionally, however, a conservator may exploit the relationship for personal gain. Over the past year, … Continue Reading

California Appellate Courts Doubly Divided Over Probate Code Section 859

We blogged recently about Keading v. Keading (2021) 60 Cal.App.5th 1115, which addresses whether a trial court can impose damages under California Probate Code section 859, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse. There … Continue Reading

Is “Bad Faith” Needed for Double Damages Under Probate Code Section 859?

A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under specified circumstances. In Keading v. Keading (2021) 60 Cal.App.5th 1115, the Court of Appeal ruled that a trial court … Continue Reading

When Do California Trust and Estate Cases Have Preference in Trial Setting or Appeal?

Getting a civil or probate case to trial in California can take a long time.  The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed.  While most California trust and estate disputes do not require juries, a multi-day court trial remains a challenge in a pandemic … 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) 9 Cal.5th 989, the Supreme Court held that “when reviewing a finding that a fact has been proved … Continue Reading

Guardian of the Galaxy – What is the Role of a Guardian Ad Litem in Trust and Estate Disputes?

Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets.  But many disputes, or at least potential disagreements, involve people who can’t fend for themselves, such as mentally incapacitated adults, children, or … Continue Reading

California Court May Award Attorney’s Fees to Financial Elder Abuse Plaintiff Who Does Not Prove Damages

A new case from the Court of Appeal once again illustrates the robust nature of claims under California’s Elder Abuse and Dependent Adult Civil Protection Act, also known as the Elder Abuse Act. In Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, a San Bernardino County jury found the owner of a residential care … Continue Reading

New California Statutes Change Spousal Undue Influence Presumptions

California trust and estate disputes often involve allegations that a surviving spouse took advantage of a deceased spouse so as to get more of the latter’s assets.  Often the “spousal financial abuse” charges are leveled by the deceased spouse’s biological children against their step-parent, as discussed in a prior post.  Sometimes care custodians who are … Continue Reading

California Assisted Living Residents Are Vulnerable to Financial Elder Abuse

As our population ages, more of our seniors are moving into assisted living facilities.  The number of such facilities has nearly tripled over the past two decades, with construction of memory care units the fastest-growing segment of senior care.  Half of assisted living residents are age 85 and older, and over 40 percent have some … Continue Reading

Elder Abuse Is Not a Trojan Horse – Bad Faith Must Be Shown for Double Damages Under Probate Code Section 859

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 … Continue Reading

California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A crafty and crooked caregiver may go so far as to marry his or her client as part of a … Continue Reading

A Thin Blue Line: APS and the DA Have Few Resources to Combat Financial Elder Abuse

Seniors are vulnerable to financial elder abuse and are often victimized, but there’s a scarcity of government resources in Sacramento County and elsewhere in California to address the problem. On May 21, 2019, the Sacramento County Bar Association’s Probate and Estate Planning Law Section presented a program entitled “Helping the Helpless: How You Can Help … Continue Reading

Probate Code Section 859 Provides a Double Size Hammer

What do you do if someone steals money or property from a trust or estate?  California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back.  To discourage such theft, Probate Code section 859 provides that the wrongdoer “shall be liable for twice … 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

Courts Should Read Elder Abuse Act Broadly to Stop Wrongdoers

California’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) 12 Cal.App.5th … Continue Reading

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

While 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 … Continue Reading

Sacramento Financial Elder Abuse – Next Steps for Victims and Their Advocates

Elder financial abuse is all too common in Sacramento County and elsewhere.  The abuser, often a family member or caregiver, drains away the resources of an elder or dependent adult who cannot work to replenish them.  By the time the theft is discovered, the money may be long gone and the victim may be saddled … Continue Reading

Are California Trusts that Favor Spouses Presumptively Invalid?

(Editor’s Note: The post below was published on November 21, 2016.  California law as to undue influence presumptions between spouses changed on January 1, 2020, due to Assembly Bill 327, discussed in a subsequent post.) When Wife works with her Sacramento estate planning lawyer to favor her Husband over her children from a prior marriage … 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

When Does Bad Behavior in Trust and Estate Disputes Become Criminal?

Many trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail? While many of my clients are rightfully outraged about … Continue Reading
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