Category: Mental Capacity

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Late Trust Contest May Trigger Enforcement of No Contest Clause

No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest is untimely.  That’s the upshot of Meiri v. Shamtoubi (2022) ___ Cal.App.5th ____, a Court of Appeal opinion issued last week. An … Continue Reading

RCFEs Can’t Get Out of the Rain – California Court Finds Another Arbitration Agreement Unenforceable

Another day, another decision by the California Court of Appeal making it more difficult for residential care facilities for the elderly (“RCFEs”) to enforce their arbitration agreements. Upon admission to virtually any RCFE, a new resident will be asked to sign a stack of documents including an agreement to submit any future dispute to arbitration.  … Continue Reading

Who Protects the Interests of Children in Trust Disputes?

California trust disputes often involve the interests of parents and their minor children.  Sometimes those interests conflict.  When disputes are settled, who looks out for the interests of children under 18 years of age?  Who checks that no child is left behind? Probate judges, as explained in a prior post, may appoint a guardian ad … Continue Reading

Elder Abuse Restraining Orders May Prevent Estate Planning Changes

Can a California court stop others from changing an elder’s estate plan?  Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust. In White v. Wear (2022) 76 Cal.App.5th 24, the Court of Appeal reviewed the issuance of an elder abuse restraining … Continue Reading

Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine.  This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to … Continue Reading

Final Ethics Opinion Guides Lawyers on Clients with Diminished Capacity

We wrote last July about a draft California ethics opinion regarding clients who may have diminished mental capacity. After receiving public comment, the State Bar’s Standing Committee on Professional Responsibility and Conduct has now finalized Formal Opinion Number 2021-207, which is close in content to the earlier opinion.… Continue Reading

California Court Gives RCFEs More To Keep Them Up At Night

Recent decisions by the California Court of Appeal have heaped stress on the owners/operators of residential care facilities for the elderly (“RCFEs”). RCFEs, like other businesses, would prefer to avoid the court system and jury trials by obtaining residents’ consent to the arbitration of any disputes that might arise. But as California appellate courts are … Continue Reading

“Predatory Marriage” Podcast

Vulnerable elders too often fall victim to predators who marry them for financial gain. But how should we balance the fundamental right to marry and enjoy companionship with protecting elders from financial abuse? Attorney Ellen McKissock, a California thought leader on predatory marriage, spoke with me on Trust Me!, the podcast of the Trusts and Estates Section of … Continue Reading

Disney Grandson Languishes in the “Unhappiest Place on Earth”

While Disneyland may be the “Happiest Place on Earth,” a California probate court may be the opposite for a Disney heir, mused the U.S. Court of Appeals in Lund v. Cowan (9th Cir. 2021) 5 F.4th 964. Bradford Lund, a 50 year-old grandson of Walt Disney, sued the probate judge who rejected a settlement agreement … Continue Reading

Ethics Opinion Guides Lawyers on Counseling Clients with Diminished Capacity

What are the ethical obligations of a California lawyer for a client with diminished mental capacity?  The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with public comment due by August 24, 2021. While all lawyers may represent clients who have questionable capacity, the situation … Continue Reading

“Mental Health Disorder” Must Be Proven Along with Delusion

When are delusions enough to invalidate an estate plan?  The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) 62 Cal.App.5th 112. The case involves a 90-year-old woman who favored a charity and disinherited the two grandchildren with whom she had been close.  The appellate court found that California … 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

Daughter Liable for Interfering with Stepmother’s Inheritance

Intentional interference with expected inheritance (IIEI) was recognized as a legal claim in California about eight years ago in Beckwith v. Dahl (2012) 205 Cal.App.4th 1039.  Last week, the Court of Appeal issued the first published opinion in California that affirms a judgment in favor of a plaintiff on an IIEI claim, thus providing guidance … Continue Reading

Temporary Conservators May Lack Authority to Sign Contracts for Conservatees

Can a temporary conservator of a person effectively sign paperwork that admits the conservatee to a California senior living facility subject to an arbitration agreement?  Only if the temporary conservator has special authorization to do so. Holley v. Silverado Senior Living Management, Inc. (2020) ___ Cal.App.5th ___, decided in August, is a cautionary tale for … Continue Reading

Memo to #FreeBritney Fans: How California Conservatees May Challenge Their Conservators

For more than a decade, some of Britney Spears’s most devoted fans feared that she was locked up against her will under a court-ordered conservatorship, even going as far to accuse her father, Jamie Spears, of drugging her to take control.  In response, fans launched #FreeBritney, a viral social media campaign, aimed at having Britney’s … 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

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

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

I’m Still Standing – California Supreme Court Allows Trust Amendment Contests in Probate Court

Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) 8 Cal.5th 822, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200. The Court of Appeal had narrowly construed section 17200 … 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

Could “The Farewell” Approach to Hiding a Terminal Diagnosis Occur in California?

In “The Farewell,” now out in theaters, family members choose not to tell the matriarch (“Nai Nai”) of her terminal lung cancer diagnosis. They use the pretext of a wedding to get the family together in China so that they can spend time with Nai Nai one last time without actually saying goodbye. The well-meaning … Continue Reading

California Probate Administration Is No Time for Napping

In the absence of a trust that allows assets to pass without opening probate, the California probate process lasts for at least six months and can run much longer depending on the size of the estate and the nature of assets. The role of the personal representative (i.e., the “executor” if nominated in the will) … Continue Reading
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