Articles Posted in Burden of Proof

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

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.