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
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
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 … Continue Reading
Stepmothers are frequent characters in California trust and estate litigation, as they are in fairy tales and Disney movies. With about half of all marriages ending in divorce, there are many stepmother/stepchild relationships. Mostly they work out fine, but some go south. After blogging on sibling conflicts as a driver of trust and estate disputes, … Continue Reading
I’m a sibling lawyer. My career started early, as a middle child, and now continues as a Sacramento-based trust and estate litigation attorney. Most of my clients are grappling with sisters or brothers over the care and finances of aging or deceased parents. In Family Feud parlance, my “survey says” that sibling versus sibling is … 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
Trustees in California trust disputes should not overlook the power of the constructive trust remedy as a way to recover errant trust assets. That’s a takeaway from Higgins v. Higgins (2017) 11 Cal.App.5th 648, an opinion in a trust litigation case published last week by the California Court of Appeal. A Los Angeles Superior Court trial … Continue Reading
New conservatorship cases in Sacramento County Superior Court have risen sharply over the past three years. Judge Steven M. Gevercer, who presides in Department 129 (the Probate Division), presented startling numbers at a March 21, 2017 lunch of the Sacramento County Bar Association’s Probate and Estate Planning Section. The panelists, including the judge and veteran … Continue Reading
Hired caregivers (also known as home care aides) permit many California seniors to remain in their homes as they age and need assistance with activities of daily living. Yet from my window looking out at Sacramento, I can see massive liability associated with the classification and payment of such workers. Consider that baby boomers are … 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
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
Prince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will … 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
Most will and trust contests in California start several months after the death of the person who created the document. Such litigation has a forensic quality: did Mom have sufficient mental capacity back when she signed the will/trust, or was she the victim of undue influence? Mom is not around to testify as to what … Continue Reading
The California Court of Appeal blocked Donald Sterling’s last second shot at undoing the sale of the Los Angeles Clippers. Donald sought to overturn the results of an eight day trial that occurred in July 2014. The opinion, issued on November 16, 2015, should be of interest to settlors, trustees, and beneficiaries of “ordinary” trusts … Continue Reading
Inheritance fights are nothing new, nor is public fascination with them. Charles Dickens published Bleak House in 1853, satirizing the English legal system in the context of the fictional case of Jarndyce v. Jarndyce. More recently, John Grisham’s Sycamore Row, released in 2013, was at the top of the New York Times best seller list. … Continue Reading
The California Court of Appeal blocked Donald Sterling’s last second shot at undoing the sale of the Los Angeles Clippers. Donald sought to overturn the results of an eight day trial that occurred in July 2014. The opinion, issued on November 16, 2015, should be of interest to settlors, trustees, and beneficiaries of “ordinary” trusts … Continue Reading
Inheritance fights are nothing new, nor is public fascination with them. Charles Dickens published Bleak House in 1853, satirizing the English legal system in the context of the fictional case of Jarndyce v. Jarndyce. More recently, John Grisham’s Sycamore Row, released in 2013, was at the top of the New York Times best seller list. … Continue Reading