Dementia casts a long shadow in California trust and estate litigation. Contestants claim that an elder with dementia lacked sufficient mental capacity to make an estate planning change, or that dementia left the elder highly vulnerable to undue influence.

The Alzheimer’s Association, in its annual Alzheimer’s Disease Facts and Figures, provides valuable information for lawyers, both planners and litigators. The Association released its 2023 report on March 15. I’ll share pertinent highlights in this post.…

When does a California estate planning attorney owe a duty of care to people other than the client?  Planners can breathe easier after a recent appellate ruling. The court clarified the limits on legal malpractice claims brought by nonclients.

In Gordon v. Ervin, Cohen & Jessup LLP (2023) 88 Cal.App.5th 543, the court explained that a client’s intent to benefit a nonclient must be clear, certain and undisputed in order for the lawyer to owe a duty to the nonclient. If the facts are ambiguous, the nonclient cannot sue the lawyer for malpractice.…

Who’s your father for inheritance purposes in California? Family Code section 7540(a) states that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.” A child covered by this marital presumption is not an heir of a deceased third person even if genetic testing proves a parent-child relationship.

In Estate of Franco (2023) 87 Cal.App.5th 1270, the Court of Appeal clarified that, in order for the marital presumption to be applied, there must be a clear showing of cohabitation (living together) at the time of conception and birth.…

This blog has devoted a lot of real estate to the use of anti-SLAPP motions in California trust and estate litigation. Though the courts’ treatment of such motions is varied and oftentimes unpredictable, Californians can generally rely on the anti-SLAPP statute to strike any meritless cause of action that seeks to hold them liable for engaging in constitutionally protected activity. Traditionally, this has meant absolute protection for the pursuit of litigation, and specifically for funding litigation.

But for trustees, the Court of Appeal’s recent decision in Starr v. Ashbrook (2023) 87 Cal.App.5th 999 means that such protection may not be quite so absolute after all. It turns out that there is a fine line between “engaging in constitutionally protected activity” and “wasting and mismanaging trust assets.”…

As the New York Times reported in December, “ChatGPT is, quite simply, the best artificial intelligence chatbot ever released to the general public.” Built by OpenAI, a San Francisco-based company, ChatGPT has grabbed headlines over the last two months.

Artificial intelligence, including chatbots, has myriad applications in the practice of law. AI no doubt will generate extensive online content readily visible when lawyers and litigants conduct quick online research using search engines like Google. How good, then, is the current version of ChatGPT? I asked the chatbot to write a post about undue influence, a common issue in California trust and estate litigation and the subject of many Trust on Trial posts.…

Here’s another reason (uno más in Spanish) to create and properly execute a will. If your spouse or other trusted designee lives out of the country when you die, he or she won’t be eligible to administer your California estate. The recent case of Estate of El Wardani (2022) 82 Cal.App.5th 870, involving…

California probate courts may appoint guardians ad litem (“GALs”) to represent the interests of those who cannot speak for themselves, including minors. While Probate Code section 1003 provides for the appointment of GALs, it does not speak to their removal. A recently published opinion, Chui v. Chui (2022) ___Cal. App. 5th ___ (“Chui II”)…

California courts may appoint guardians ad litem as helping hands to act for those unable to make their own decisions in litigated cases because they are minors or incapacitated adults.  For background, see our prior post.

Senate Bill 1279, effective January 1, 2023, clarifies and improves the rules governing the selection of guardians…

[Editor’s Note: This post was revised on January 11, 2023 after the implementing Judicial Council forms became available.]

California trust and estate disputes often include claims that one or more family members have isolated or are isolating an elder for financial gain.  For example, Brother may have difficulty communicating with Mother and blame Sister for…

Traditionally, the creation of a valid will, in California and elsewhere, required strict adherence to certain formalities.  Estate law has been tepidly moving away from requiring compliance with those formalities, with a goal of prioritizing the intent of the person creating the will (the “Testator”).  Nine states have gone so far as to enact laws…