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Although wills and living trusts are intended to make clear designations for the distribution of assets at death, they may actually give rise to conflict. Rightful beneficiaries may have been excluded as a result of oversight or undue influence on the testator.
I am an attorney with the experience and the dedication to protect your interests in a will contest. I will appraise the situation and offer knowledgeable counsel; with the benefit of my insight and knowledge, you will be better able to make informed decisions, including whether to pursue litigation.
At times, a caretaker has been promised money or property in a will in exchange for continued care, but the will does not reflect this promise. I have represented prospective beneficiaries in these quasi-specific performance actions, working to secure the property as the testator intended. I am always mindful of the emotional investment of clients in these types of cases.
When there are claims that a caregiver has exerted undue influence over an elderly person in order to obtain an unfair or disproportionate share of the decedent's estate, clear and unemotional counsel is critical. My firm provides effective representation to the potential beneficiary or to the caretaker in these undue influence cases.
Under California Probate Code section 21350, there are certain limitations on transfers such as gifts or property of an estate. Section 21350 effectively creates a presumption that certain transfers are invalid. Among such are transfers by a dependent adult to "[a] care custodian of a dependent adult who is the transferor", or to a person related by blood to such a care custodian. Probate Code section 21351 sets forth the manner in which a party can rebut the presumption of Probate Code section 21350 that the transfer is invalid. More specifically, section 21351 provides that section 23150 doesn't apply if "[t]he court determines, upon clear and convincing evidence, that the transfer was not the product of fraud, menace, duress, or undue influence."
A beneficiary who demonstrates that these probate code sections don't apply to the situation doesn't necessarily prevail in a will contest. Rather, by doing so, the beneficiary merely avoids having the document be declared invalid without the need to consider the usual factors which a court considers in determining whether a document has been the product of undue influence.
Who "qualifies" as a care custodian of a dependent adult? Section 21350 instructs the courts to utilize a definition of that term set out in Welfare and Institutions Code section 15610.17.
In Bernard v. Foley (2006), the California Supreme Court determined that the definition of a care custodian included close personal friends who provide health services to a dependent adult. The caregivers in that case were beneficiaries under a revocable living trust executed while the decedent was living with them for the last two months of her life. The caregivers provided significant assistance to the decedent, such as handling the decedent's shopping and financial needs and prepared her meals for her. Also, they made her bed, assisted her with bathing, helped to change diapers, washed her face and hands, administered oral medications, applied salves and ointments to her as needed and monitored her breathing.
The beneficiaries in Bernard argued that they had been longtime friends of the decedent who had assisted her greatly and in now way exerted influence on her to leave property to them. They argued that while the law should clearly be applied to such persons as nurses or hired caregivers, the court should adopt an exception for longtime friends rendering assistance.
The court recognized the problem, but held that it was constrained to apply the law as the Legislature had written it. It gave no room for the creation of an exception. The court invited the Legislature to revisit the problem, and decide whether the rule should be less onerous. To date, however, the law remains unchanged.
The decision of the court in Bernard does not mean that persons who are longtime friends off the decedent and who assisted the decedent are ineligible to receive gifts. What it means is that in order to do so, care must be taken to comply with certain requirements of section 21351, which allows such transfers to be made if an independent attorney participates in the process when the will or trust is prepared and signed, and if that attorney executes a document stating that in the opinion of the attorney the document was not the product of undue influence. Without this type of careful compliance, this type of gift is highly vulnerable to attack by other potential beneficiaries.
I also represent clients in will contests arising out of claims of fraud or based on technical errors in the execution of the will.
Contact me at 805-284-9703 for a free initial consultation on your will contest matter.
Se habla español. Spanish language services available.
I am also a licensed real estate broker.
Dennis J. Shea
903 State Street, Suite 208
Santa Barbara, CA 93101
Telephone: 805-284-9703
Fax: 866-786-0933
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © 2010 by Dennis J. Shea. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.