California Estate Lawyer Blog

In my last post, the person who I had accused of Undue Influence (California Civil Code §1575 ), had taken the witness stand during the trial of the case. Recall that I had alleged that my client's elderly cousin once removed, had been unduly influenced by this person, his hired caregiver, to the extent that he revoked my client's Power of Attorney (California Probate Code §4022), which gave her the authority and the responsibility to take care of his financial affairs, and gave that power to this caregiver. It was time for my cross-examination.

Just before I began questioning the caregiver, my client had the presence of mind to tell me that after the Power of Attorney had been taken from her, her cousin had transferred ownership of his home to his caregiver. I asked the caregiver is she owned the residence in which my client's elderly cousin resided; she said yes ... I then asked her how it came to be that she became the owner of this senior's residence. Her response amounted to an admission on her part that she was guilty of Undue Influence. This is what she said to me and to the court:

Of course I had him deed me the house. You can't let old people keep their houses, the state will get them when they die

Needless to say, the court found in favor of my client, finding that the deed to my client's cousin's house, transferring it the caregiver, had been the product of Undue Influence, along with the Power of Attorney that had been given to the caregiver. Both were voided by the Court. My client was, of course, pleased, as was I, with this outcome.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Burden of Proof , Elder Abuse , Trial , Undue Influence

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I have been describing in my prior two posts how it was that my client's complaint, alleging Undue Influence California Civil Code §1575 (and, if brought today, Elder Abuse), came to trial in the Orange County Superior Court Orange County Superior Court. Now I will describe the trial itself.

In general, trials, whether they be concerning trusts, probate or just civil litigation, all follow the same pattern. The counsel for the person who made the allegations of misconduct (usually referred to as the "Plaintiff" or "Petitioner") begins with opening statement. This is when he or she tells the court what he expects the evidence brought before the court to prove. Counsel for the other side (usually referred to as the "Defendant" or "Respondent") then makes his or her opening statement. At the conclusion of opening statement, counsel for the Plaintiff/Petitioner begins the case by calling his first witness. Generally, the witness testifies about facts within his or her knowledge and written evidence that he or she is competent to testify about (terms like competency to testify about written evidence are addressed in the California Evidence Code, e.g. Evidence Code §701) Counsel for the Defendant/Respondent then is allowed to cross-examine the witness, challenge the testimony or admissibility of the evidence, and when done, the next witness is called to testify. Once the Plaintiff/Petitioner has presented all of the evidence and testimony for his or her client, counsel for the Defendant/Respondent has the opportunity to call witnesses and introduce evidence that he or she believes is favorable for his client.

In this particular case, I called my client and her husband as witnesses to testify to the close relationship that my client had with her cousin and how that relationship changed once the caregiver came on to the scene. I introduced as evidence the Power of Attorney that my client had been given by her cousin, along with other documents that showed that she had been doing a good job handling his financial affairs. The other side called the elderly gentleman as a witness and then, around 4PM, called the caregiver to the stand.

What she said during my cross-examination of her won the case for my client. That will be in the next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Elder Abuse , Trial , Undue Influence

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As I described in my prior post, my client's cousin, an elderly gentleman, appeared to have been taken in by his caregiver and was demanding that my client give up the checkbook and account that she maintained for him to pay his bills. I filed a complaint in the Orange County Superior Court. I served the summons on the complaint on the caregiver, which gave her thirty days in which to respond to the complaint ((California Code of Civil Procedure §412.20). She, of course, denied all of the allegations and alleged that the elderly gentleman in her care was being abused by my client. This was in the early '80's. The current statutes concerning Elder Abuse ( California Probate Code §21350) did not exist at that time .

The day of trial came. My client and her husband came to the courtroom with me. My client sat at counsel's table by my side. The elderly gentleman, my client's cousin once removed, was brought to the court by the caregiver. He and the caregiver sat at counsel's table with the caregiver's attorney.

The burden of proving that it was more likely than not that the caregiver had been poisoning the relationship between my client and her elderly cousin was on me, as I had brought the complaint alleging Undue Influence (California Civil Code §1575 ) on behalf of my client.The case was called, I made my opening statement and the trial began. As this was a court or bench trial, there was no jury. In this type of trial, the judge is the trier of fact and makes all findings of law and evidence. It was he who I had to convince that my client's allegations were true.

In my next post, I'll describe what happened in the courtroom.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Burden of Proof , Elder Abuse , Trial , Undue Influence

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Before I moved my office to Newport Beach, California, I was a partner in a law firm in Santa Ana, California. While there I tried a case that was decided in accordance with the statutes concerning Undue Influence. Undue Influence appears in the California Probate Code ( California Probate Code §21350) and is commonly alleged when it is suspected that a vulnerable individual signed a will, a deed, or other instrument, giving something of value to someone that would not have occurred, but for that someone's undue influence over the vulnerable individual (typically an elderly, senior person). Undue Influence is defined in California Civil Code §1575 .

In this case, an elderly gentleman, who lived in what was then Leisure World, near Seal Beach, California, was taken in by his caregiver, a woman hired to help him with his daily activities. My client was a cousin, once removed, of this elderly senior. Incidentally, my client was also the elderly senior's only living relative. My client came to me and told me that she suspected that the caregiver was isolating her cousin, turning him against her. The caregiver would not put her cousin on the telephone when she called him, often giving some lame excuse, and the letters that she used to receive from her cousin were less frequent and had an angry, accusatory tone to them. My client had handled her cousin's financial affairs for years pursuant to the authority that she was given by a Power of Attorney (California Probate Code §4022) that had been given to my client by her cousin in order for her to pay his bills and otherwise assist him. When the caregiver notified my client that the caregiver had been given a new Power of Attorney and demanded that my client turn over the checkbook to the caregiver, my client took action.

After reviewing the facts of this case, I filed a petition in the Orange County Superior Court. The petition alleged, among other things, that the caregiver was exercising Undue Influence over my client's cousin, and sought to have the caregiver removed from his affairs, re-instating my client as his agent for financial affairs (i.e. his attorney-in-fact).

I'll describe what happened in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Undue Influence

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I had, as described in the prior post, all of the ammunition that I needed to go to hearing in the Superior Court of Los Angeles County, Central Judicial District. However, hearings can be costly, there is no absolute assurance as to the result, and clients tend to be sensitive to legal fees. A common method of resolving cases without going to trial is to mediate the case in accordance with California Code of Civil Procedure §1775.1.

In mediation the parties select a neutral third party (typically an attorney with training in mediation or a retired judge with similar training) to hear their grievances. The mediator then separates the parties and engages in what I refer to as "shuttle diplomacy". It is effective most of the time, provided that both parties intend that the matter be settled; else, it is a waste of time. The mediator facilitates achieving the settlement by expressing his or her opinion as to the strengths of each side of the case to the party representing that side, and carrying settlement offers back and forth, usually to the point where the parties can agree and end the litigation.

This is what occurred in this case. A mediation was held, the parties described what the strengths of their positions were, and the mediator went to work. As it turned out, he spent a lot more time engaging the other side than he did with my client and me. The result was that the father (trustee for his children) immediately turned over the majority of the trust assets as he should have done years prior. On delivery of the trust assets, my clients dismissed the petition.

Why, you ask, did my clients accept the majority of the trust assets rather than insisting on all of them? Because the cost of going to trial was more than the value of the additional assets that would have been recovered; not to mention the continuing emotional costs of my clients suing their father. My clients made a business decision based on sound economics and chose to settle at that point, assured of the the result of their actions. That was the end of this case.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Trust Litigation

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The trust accounting had been filed with the Superior Court of Los Angeles County, Central Judicial District, but I had many questions concerning the entries on the accounting. What to do?

Under California law, all of the common discovery tools available in civil litigation (depositions, interrogatories, request for production of documents) are available in litigation before the probate court, including trust litigation ( California Probate Code §1000). While sometimes more expensive, a deposition is usually the quickest way to get answers to questions. For those who don't know, a deposition has the witness (deponent) swear an oath just as if they were testifying in court under penalty of perjury (California Code of Civil Procedure §2025.330). Another discovery technique (less expensive but not as quick) is to serve written questions that also have to be answered under oath (called interrogatories; California Code of Civil Procedure §2030.010) and await the response. In this case, I started out with interrogatories.

Once I received the responses to the interrogatories, it was clear to both sides that my client would prevail at hearing. More in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Discovery

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When the father of my beneficiary clients, as trustee of the living trust created for them by their grandparents, finally complied with the court's order to submit an accounting, it told a story of trustee misdeeds, malfeasance and breach of fiduciary duty.

In California, a trustee has various duties as set forth in California Probate Code §§16000 et seq., known as the Trust Law. Among them is the duty to put the interests of the individual beneficiaries before his own (California Probate Code §16002) In addition, a trustee has a duty to follow the instructions of the trust concerning distributions (California Probate Code §16000). In an accounting the trustee, among the other items set forth in California Probate Code §16063, is required to list, in detail, on separate schedules, the assets of the trust, the income of the trust, the gains and losses from the sale of trust assets, the expenses of the trust, distributions from the trust and property on hand as of the date of the accounting. These were the schedules that I reviewed on behalf of my clients.

While I am licensed as a CPA (Certified Public Accountant) in addition to being an attorney, I practice law. That does not, however, mean that I turn my back on my skills as a CPA. To the contrary, I find those skills very useful in most of the areas of law that I practice in, including business, probates and trusts.

What I discovered by reviewing the accounting was that the trustee, the day prior to the accounting cut-off date, had repaid approximately $20,000.00 to the trust principal, as well as several thousand dollars as interest income. This was an attempt on his part to cover-up the fact that he had used trust funds for his personal benefit. However, being the greedy person that he was, he claimed at the same time and in the same accounting expenses and trustee fees almost exactly equal to the money that he allegedly returned to the trust accounts. How curious ...

I'll describe what happened next in my next entry.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Accounting , Breach of Fiduciary Duty , Breach of Trust , Trust Litigation

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Previously, I described sending a demand letter to the father of my clients, beneficiaries of their grandparents' living trust. I demanded that the father, as trustee of their trusts, account to them for his activities as trustee as well as distribute to each of them their beneficiary shares of the living trust. His response was less than forthcoming.

After giving the trustee enough time to do what he should have done, I filed a petition to compel an accounting (California Probate Code §17200(b)(7)) in the Superior Court of Los Angeles County, Central Judicial District (i.e. in downtown Los Angeles)). I also requested the court to issue a "Citation" (a citation serves a similar purpose to a summons in civil litigation) pursuant to California Probate Code §§1240, 1241 and 1242, which, after service on him in accordance with California Code of Civil Procedure §413.10 compels the father, as trustee, to appear in court and explain why the court should not order him to account in accordance with the petition that I filed on behalf of the my clients, the beneficiaries of the living trust.

After being served with the Citation, the trustee appeared in court, with his attorney, and the battle was joined. Suffice to say that the court inquired as to how long the trustee would need to prepare the accounting and ordered that it be so. The court also set a date for the hearing (like a trial) on the petition.

I will explain what the accounting disclosed in my next entry.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Accounting , Trust Litigation

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In my last post, I described the living trust situation wherein my beneficiary clients believed that their father, trustee of the living trusts established by their grandparents for their benefit, was wrongfully withholding their funds, breaching his fiduciary duty as a trustee. Here is what I did as an advocate and attorney to protect their interests.

I should point out that California Probate Code §17200(b)(7) permits a living trust beneficiary to seek a court order requiring the trustee to report and account for his activities with the trust funds. Knowing this, I wrote a demand letter to the trustee (my clients' father) informing him that I represented his children, that I had read the living trust, that the living trust required distribution to each child at age 21, and that he, as the trustee, had breached his fiduciary duty, as a trustee, to account to his children (the beneficiaries) and to distribute the funds. I further informed him that I would file a petition in the Superior Court of Los Angeles County (where the living trust was located and domiciled) to compel an accounting and distribution if my clients' demands were not met.

The trustee's initial response to my clients' demands was to delay and promise that an accounting would be forthcoming.

I will describe what happened next in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Accounting , Breach of Trust , Trust Litigation

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In my Orange County, California estate planning practice, I am constantly amazed at the greed shown by family members towards each other. Although I have been in practicing thirty years now with substantial experience in trust, probate and estate litigation, I have seen no change in the willingness of one or more family members to short-change another family member.

Not too long ago I was approached by a grandchild of deceased grandparents. This grandchild had three siblings. All of them were told that when their grandparents died, the living trust that had been established for them by the grandparents would be held by their father, as trustee, for their benefit, until each grandchild turned 21 years old. At that time, the father was to distribute that grandchild's share of the living trust.

At the time that I was retained, all of the siblings had attained age 21 with oldest being age 28. The father had never rendered an accounting (a report of the assets that he started with, the income that he received, the expenses that he incurred, and the property that was on hand) to his children to show what he had done with their trust funds. Instead, he had repeatedly made promises that an accounting would be prepared shortly or that the income and expense information was at the accountant's waiting to be assembled into an accounting. The children began to suspect that their father was withholding their money and using it for himself, which is considered, in California, a breach of fiduciary duty by the trustee. I was asked to do something about this.

What I did will be in my next entry.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Accounting , Breach of Fiduciary Duty , Breach of Trust , Trust Litigation

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