Financial elder abuse can result in heavy double damages against the perpetrator. In a new case, Keading v. Keading, the appeals court ruled that financial elder abusers can be held liable for double damages even absent a finding of bad faith by the trial court. The defendant in Keading attempted to argue that the language of Probate Code Section 859, which concerns wrongful taking of property from elders and other vulnerable populations, requires a finding of bad faith. However, the court ruled that the clause regarding financial elder abuse is distinct from the other portions of the section that mention bad faith. Therefore, any taking of an elder’s property via financial abuse makes the defendant liable for double the amount they illicitly took. In the same case, the court of appeals elaborated on some of the evidentiary standards for proving financial elder abuse. As the court notes, plaintiffs alleging financial elder abuse often have to rely on circumstantial evidence and inferences to prove their case. Courts are directed to consider “(1) the victim’s vulnerability; (2) the influencer’s apparent authority; (3) the tactics used by the influencer; and (4) the inequity of the result” when making these determinations. Importantly, the court also holds that Estate of Sarabia, which lays out necessary conditions for a common-law presumption of undue influence to arise, has no import when a court is making a specific finding that undue influence and financial elder abuse actually occurred. Therefore, the four statutory factors above are the most important in proving financial elder abuse.

Breslin v. Breslin, a recent Court of Appeals case, makes clear the potential risks for beneficiaries or interested parties that choose to not participate in litigation. In Breslin, the testator listed over twenty charities as beneficiaries of his trust, but it was not clear how the funds should be divided. The trustee filed a petition for instructions, which only a small fraction of the charities responded to. Subsequently, the trial court ordered mediation among all interested parties. Notice was provided to all the charities and the intestate heirs, yet only five of the charity beneficiaries participated in mediation. The parties that did participate were successful in reaching a settlement and petitioned the court for approval. Only then did more charities show up in court, objecting to the proposed settlement agreement. The court approved the agreement, because the charities had been on notice since the original petition and failed to take any action until the matter was resolved. The appellate court affirmed the trial court’s ruling. It held that by not participating earlier, the charities had given up any right to an evidentiary hearing or any other interest in the matter. Additionally, the court noted that the trustee did not violate his fiduciary duty to the non-responsive beneficiaries because they had all been noticed. The Breslin decision is a welcome sign to trustees and administrators that have recalcitrant beneficiaries who seek to delay resolution of issues by stonewalling and refusal to negotiate.

The Supreme Court just ruled that the Defense of Marriage Act (“DOMA”) is unconstitutional. That means that the federal government will acknowledge same sex marriages in the same manner in which the states do.  In other words, because California is a state that now does acknowledge marriage between same sex partners, the federal government will acknowledge those marriages. This acknowledgement will […]

Estate planning is not just about wills, trusts and powers of attorney.  Good estate planning involves an evaluation of your beneficiary designations for retirement accounts and insurance policies to ensure that there are no unintended results.  The Virginia Supreme Court recently held that a Virginia law cannot override a federal employee’s decision to make his […]

I recently saw this news story on the Internet.  While all the readers may think this could not possibly happen to them, it can and does happen to elderly people every day.  If you give someone a power of attorney, you must know and understand that you are giving someone the power to take everything you own […]

Almost certainly only lawyers know what this amendment is about  — ok, well maybe only law students!  The 27th Amendment ensures that members of Congress can’t vote for their own pay raises and that any change in compensation they vote for does not take place until after the next election. Interestingly, the 27th Amendment, which […]

The California Court of Appeals has recognized a new tort cause of action in a decision that is likely to increase the amount of litigation related to trusts and estates.  Heirs can now sue beneficiaries for “Intentional Interference with Expected Inheritance” in California.  This is different from a Will Contest where an heir is contesting […]

Trustees are generally entitled to be compensated for the work they do in administering a Trust. Compensation is either the amount set forth in the Trust agreement, or it provides the Trustee with “reasonable compensation” if the Trust is silent on the issue.  A new case decided by the Court of Appeals in 2012 establishes that […]

The generation that came of age in the 1960s is beginning to retire. Born after World War II, they grew up in an era of rising living standards, but the Great Recession destroyed any sense of financial security. Now they face challenges, including putting their kids through college and caring for their parents. Is this […]