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
(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
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
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
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
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
(Editor’s Note: Please listen to my January 2023 podcast conversation with Dr. Canick, available here.) 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 … Continue Reading
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
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
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
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
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
(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
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
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
“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
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
For a richly-detailed profile of a woman’s experience with Alzheimer’s disease, read “Fraying at the Edges,” an article by N. R. Kleinfield that appeared on May 1, 2016 in the New York Times. The author follows Geri Taylor, who was first diagnosed with Mild Cognitive Impairment in 2012 at age 69, and introduces us to … Continue Reading
Spotting undue influence is no easy task for estate planning attorneys. When Mom wants to change her trust to favor Sally over Johnny, Mom presumably is making her own choice for her own reasons. But it’s also possible that Sally, behind the scenes, is pushing Mom to make the change. An estate planner is like … Continue Reading
At 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 … Continue Reading
On a road trip over the holidays, I listened to John Grisham’s Sycamore Row, as artfully read by Michael Beck. Published in 2013, it’s a sequel to Grisham’s first novel, A Time to Kill, and again features young country lawyer Jake Brigance. This time, instead of an accused man, he’s defending the handwritten will of … Continue Reading
Undue influence is a major theme in trust and estate litigation. But when does advocacy for a change in an estate plan cross the line and become undue? There is no bright line test for undue influence under California law. Almost always, the proof is indirect. While there is no video of Sister pressuring Mom … Continue Reading
Undue influence is a major theme in trust and estate litigation. But when does advocacy for a change in an estate plan cross the line and become undue? There is no bright line test for undue influence under California law. Almost always, the proof is indirect. While there is no video of Sister pressuring Mom … Continue Reading