Category: Undue Influence

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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

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

En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation

Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die.  It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes … Continue Reading

What California Trust and Estate Litigation Will Arise from the Economic Downturn?

The COVID-19 pandemic has idled workers and the coming weeks will bring more news of business closures and bankruptcies.  After a decade of sustained growth, we are facing a recession of uncertain depth and duration.  The New York Times recently reported that some Americans are turning (or perhaps returning) to “financial therapy” for support. In … 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 Estate Planning Disrupted by COVID-19 Virus and “Social Distancing”

What a difference a few weeks make!  A month ago, the COVID-19 virus was a distant threat.  Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return. Colleagues share that COVID-19 has led to a flurry of calls from clients who … 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

Your Slice of the Pizza – Only Directly Inherited Asset Qualifies as Separate Property

(Editor’s Note: The Court of Appeal granted rehearing on December 2, 2019 and later depublished the portion of its opinion discussed below such that it is no longer citable authority in California courts.) It is widely understood in California that inherited assets, unlike assets earned from labor, are the separate property of the receiving spouse.  … 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

When Defending Becomes Offensive: California Court Expands No Contest Clauses to Defense of Invalid Amendment

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 invalid … 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

A Neuropsychologist’s Take on Mental Capacity Evaluation

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 … Continue Reading

California Court Can Apply Impossibility Doctrine

What happens when the settlor (i.e., creator) of a trust imposes a condition precedent on receipt of a distribution from the trust, but the condition cannot be met because the circumstances have changed?  Is the beneficiary out of luck for reasons beyond his or her control? The First District Court of Appeal took up this … Continue Reading

Why Contingency Fee Representation Is Hard to Obtain in Trust and Will Contests

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 … Continue Reading

Look for Mild Cognitive Impairment in California Trust and Estate Disputes

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 … 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

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

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

Sacramento Trust and Probate Litigation “Boot Camp” Program

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 … 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

California “Parent Custody” Battles Leave Everyone Bruised

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 … Continue Reading
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