No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an
Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity,” graciously offered to share his thoughts with us here.
Dr. Canick has practiced neuropsychology for over 30 years. He is a member of the departments of psychiatry and neuroscience at California Pacific Medical Center, an associate clinical professor, University of California, San Francisco, and a member of the Board of Directors of Legal Assistance for Seniors, an Oakland-based nonprofit. He was a co-author of a research paper entitled “Reversal of Cognitive Decline in Alzheimer’s Disease” that was published in the June 2016 issue of the journal Aging.
Can a disinherited person contest a trust amendment under California Probate Code section 17200? No, said the Court of Appeal last August in Barefoot v. Jennings (2018) 27 Cal.App.5th 1.
The Barefoot opinion put pending trust contests in jeopardy, as contestants typically have used section 17200 as the procedural hook to challenge trust amendments that disfavored them. Last week, however, the California Supreme Court granted review of Barefoot such that the opinion no longer has precedential value.
We often receive inquiries about whether we will represent parties in California trust and will contests on a contingency basis. In contingency representation, the lawyer does not collect a fee unless the client obtains a favorable settlement or court judgment. Contingency fees usually are structured on a percentage basis, with the lawyer receiving perhaps 25-40
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.
Mental incapacity and undue influence are the most common theories used to try to invalidate wills, trusts and beneficiary designations in California and elsewhere. Occasionally, the subject in a trust and estate dispute has a thorough cognitive evaluation performed contemporaneously with his or her estate planning change. But, more often than not, the medical record is fragmentary.
In a prior post, we discussed the recurring issues that come up in cases involving Alzheimer’s disease. Dr. Charles Schaffer, a Sacramento forensic psychiatrist, recently sent me an article entitled “Protecting the Health and Finances of the Elderly with Early Cognitive Impairment,” published this year in the Journal of the American Academy of Psychiatry and the Law. The article focuses on mild cognitive impairment and early Alzheimer’s disease. The relatively subtle nature of these two medical conditions makes their impact on estate planning decisions hard to fathom.
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
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 financial elder abuse claims in the case of Tepper v. Wilkins (2017) __ Cal.App.5th __. While an elder is still alive, only the elder or a qualified “personal representative” has standing to file suit for financial elder abuse.
The 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.
Most California trust and estate disputes are emotionally intense, and none more so than sibling conflicts over the care of an aging parent. Like a child custody fight in the family law context, siblings battle over whether Mom will remain in the home where she lives, move in with one of them, or move to an assisted living facility. They fight over who will manage Mom’s finances and interact with her doctors.
California courts have the tools to resolve these disputes, but struggle to evaluate competing claims of siblings and have a limited attention span to parse through them. Very often, when siblings cannot find middle ground, Mom’s care and finances will end up in the hands of a third party conservator and trustee, after many thousands of dollars in legal fees.