Articles Posted in Undue Influence

In California, over the years, I have handled many cases involving disputes between family members over the estates of a deceased relative. Brothers against sisters, sisters against brothers, uncles against nieces, nephews and others.  Some cases go to trial; other cases settle.  In all events, however, someone is going to be disappointed with the outcome, which disappointment can occur even if they prevail.

If you have been disinherited, you believe that the instrument that disinherited you was obtained by undue influence or when your deceased loved one (or relative) was incompetent, your recourse is the courts.  Let’s say that you succeed in getting the offending instrument (a will or a trust) thrown out.  What then?

The court may say that if there is no other earlier instrument, the estate will go by intestacy (as if the decedent died without a will) and it will then be divided among the heirs of the decedent.  However, if there is an earlier instrument (perhaps a will) in which you have also been disinherited, then prevailing in the trust contest only sets you up for the next contest, which is to challenge the will (presumably on the same grounds as you challenged the trust).

I have represented three sisters against their brother over their mother’s will.

I’ve represented a child who was adopted and thought she had a great relationship with her presumed half-sister and then found out the sister wanted all of the deceased father’s estate. We had to find tissue and get DNA testing to resolve that matter despite all of the family photographs.

I’ve represented cousins against a decedent’s lover, who got the decedent to leave his entire multi-million dollar estate to the lover. We showed up for trial at 1PM. The judge sent us to discuss settlement … three different times I announced that I would proceed with the trial because there could be no settlement, and three different times the other side blinked. We finally settled at 7:30 PM (kudos to the judge and his staff for staying so late).

A typical case will involve a family member contacting me to complain about the dispositions in a will or trust of a deceased relative, with allegations that another family member or a caregiver “got” to the deceased relative to unduly benefit themselves at the expense of the other family members.

To properly analyze the case, I obtain copies of all prior testamentary documents (to determine if the terms are at variance with the current documents, and how great a variance there is).

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California defines undue influence in the Civil Code. Specifically, Civil Code Section 1575 states:

“Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

Trust contests are very similar to will contests with similar allegations of incompetency and/or undue influence. The difference is that there may be only a very short time to decide if you are going to file a contest.

There is a procedure in the Probate Code (§16061.7) where the trustee gives notice to all beneficiaries that the trust has become irrevocable and a copy of the trust is provided; if that procedure is properly followed, then a contestant has only 4 months in which to bring a trust contest.

If the contestant waits too long, or there is a no contest clause, then they may be out of luck. That’s not to say that if you can prove the entire trust is invalid (and therefore the Probate Code §16061.7 notice is invalid) you can’t win; you might. It just makes a hard job harder.

What if, despite everyone’s good intentions, there is conflict after the death?

What if an heir or beneficiary or someone who thinks that they should have been made an heir or beneficiary complains?

What if a trustee never accounts to the beneficiaries and enriches himself at the expense of the others?

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

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.

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.

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).