We blogged recently about Keading v. Keading (2021) 60 Cal.App.5th 1115, which addresses whether a trial court can impose damages under California Probate Code section 859, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse.
A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under specified circumstances.
In Keading v. Keading (2021) 60 Cal.App.5th 1115, the Court of Appeal ruled that a…
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.
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 the value of the property recovered,” and may be liable for legal expenses incurred to recover the property, if you can prove the wrongdoer took the asset in bad faith, through undue influence, or through the commission of financial elder abuse.
Like many California statutes, the “twice the value” language of Probate Code section 859 is not crystal clear. Thankfully, the Fourth District Court of Appeal in Conservatorship of Ribal (2019) 31 Cal.App.5th 519 recently provided guidance as to how to the calculation works.
In addition to bark, the Probate Code can have bite too. Some Probate Code sections have provisions that are punitive in nature and are designed to keep fiduciaries and others dealing with trust property in line. These statutes have sharp teeth.
Take, for example, California Probate Code section 859, which concerns property taken from a trust, an estate, a minor, an elder, or other vulnerable persons through the use of undue influence, in bad faith, or through the commission of financial elder abuse. This statute might be triggered if Junior tricked Mom into leaving him the $1.2 million family home in Granite Bay to the exclusion of Sister. In such an instance, section 859 permits the assessment of damages against the offending person in an amount double the value of the property that was taken, and allows for the court’s discretionary award of attorneys’ fees. This means that Sister might be able to recover $2.4 million against Junior along with the attorneys’ fees she spends pursuing him.