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Hi, this is Stewart Albertson with Albertson & Davidson. In this video, I want to talk about how we can support the claim, and meet our burden of proof, to show that undue influence took place.

Some of the markers that we look for are the actions by the person that we believe exerted or exercised undue influence over a decedent.  We want to look at this person’s place of business in the decedent’s life when the decedent was still living.  Did this person have control over the decedent’s access to food?  Did they have control over access to medications?  Did they have control over access to going to medical appointments to see physicians?  Did they have control over the financial information of the decedent?

We see these markers and we look at this person and we say, “did they take their place within the decedent’s life, where the decedent relies on them for many things:  their medications, transportation, food?  Did they take that and did they exercise undue pressure over the decedent to get the decedent to create a trust or a will that benefits them, at the expense of other people?”

The more we see these markers, the more that we see the undue pressure, such as a wrongdoer calling up a lawyer that the decedent has never met to make an appointment to create a new trust or a new amendment or a new will or a codicil to that will, to that person driving the decedent to the lawyer, to meeting in the lawyer’s office with the lawyer and the decedent to create the trust, to have multiple emails and texts with the drafting attorney to make sure that the trust or will is drafted according to the decedent’s wishes, those are all things that we see time and time again in these undue influence cases.

One thing that really helps us, in addition to everything I’ve just pointed out is the medical records. Do the medical records show that the decedent suffered from some type of mental incapacity, such as dementia or Alzheimer’s?  It doesn’t have to be dementia or Alzheimer’s, but that’s one we commonly see.  If the decedent is suffering from any mental incapacity issues, and you have all of those other things we’ve talked about, those elements we’ve looked at, where this person is in a position of power, that generally leads us to believe that that person exercised undue influence over this individual. If they’re receiving a lion share of the estate plan, or they are receiving more than they would have, absent the undue influence.

Those are some of the things we look at to determine if we can show undue influence took place during the lifetime of decedent, often shortly before the decedent passed away.

 

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about one of more difficult set of cases we come across and I call these the “Difficult Don’t Miss Undue Influence Cases”.  Let me say that one more time – the Difficult Don’t Miss Undue Influence Case.

What is the difficult don’t miss undue influence case?  That’s where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away.  And so the question is, what can we do to invalidate the trust or the will that the wrongdoer got created using – exercising undue influence over mom and dad?

These are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination.  So, you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge of mom or dad’s estate.  But, as you can probably imagine, if mom or dad has any capacity whatsoever, they don’t like being told that they don’t have capacity and they certainly aren’t going to like that you’re the one who is asking the court to find that they are not capacitated.  So mom and dad can become upset by this.

The person who’s the wrongdoer who is already unduly influencing your mom or dad, they’re going to take advantage of this situation and they’re going to point out to your mom or dad, that look, your son not only doesn’t love you and doesn’t like you, your son wants to take your capacity away.  You son’s trying to get access to your estate before you’re even gone.  This son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them.

So what are you to do in these type of difficult cases?  Do you file for conservatorship and that’s why we call these the Difficult Don’t Miss Undue Influence Cases.  Because if you’re going to file for conservatorship, you have to win it.  If you don’t win it and mom and dad is capacitated – are still capacitated and a court finds that they’re capacitated.  Chances are if you were in their trust or will, you’re certainly not going to be in it now by way of an amendment or a codicil to the will.  And then you’re going to have a much higher hill to climb after your mom and dad die when you do bring a trust contest or a will contest.

So, what is a better option, perhaps?  And it’s hard, because, sometimes you have to sit back and do nothing while mom and dad are living.  And what we suggest to many clients is just focus on mom or dad in their sunset years of their live, give them comfort, give them care, give them compassion, spend time with them.  Don’t talk to them about their trust or their will.  Don’t talk to them about their assets – as difficult as that may be.  Because the person who is exercising undue influence over them will turn that against you and make it seem like YOU’RE the one that’s trying to get their assets.  YOU’RE the one that’s the greedy heir.  YOU’RE THE problem, not them.

So if you can, stay disciplined.  Focus on your parents.  Care for them in the sunset years, however many months or years they have left.  Then, once they pass away, there are remedies available to you, such as a trust contest, a hill contest, and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime.

These are very difficult cases.  It’s very difficult to determine the best route to take.  Our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue influence.

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Hi, this is Keith Davidson with Albertson & Davidson. In this video, I want to talk about some of the warning signs that you should be aware of to clue you in that undue influence might be taking place with one of your parents.

As lawyers, when we get undue influence cases we typically get them after everything’s been done and we’re looking at the facts in hindsight. But, as a child, there’s times when things happen, and you might be suspicious of what’s happening, but you’re not sure if it’s something bad or not. That’s what I want to talk about. These are the warning signs that really should be on your radar and start raising red flags when you see them.

For example, let’s say you have a parent, and you can tell that they’re kind of slowing down, and you notice that somebody (like a neighbor, a caregiver, or a stranger who you don’t even know), starts spending a lot of time with that parent at their house, and then they start helping the parent write checks or go to medical appointments. That could be a real red flag of somebody who’s trying to cozy into the parent and slowly take control.

Typically, the way undue influence works is: somebody starts off by being just a friend, and then a helper, and then they start taking over everything; check-writing, finances, medications, doctor visits, even communications. That’s another warning sign.

Let’s say that you are finding it difficult to talk to your parent. You try calling them and somebody else answers the phone and won’t let you speak. Or, when you talk to your parent, there’s somebody else who’s always on the other line, listening in. That’s a huge red flag that somebody is probably trying to control the flow of information to the parent. That could be a real problem. So that’s another big warning sign.

One of the elements of undue influence is that somebody controls the necessities of life; food, medication, all those sorts of things. So if you see somebody who you aren’t that familiar with, and they’re doing all the grocery shopping for your parent they’re making meals for the parent they might be doing something that’s really nice and maybe there’s nothing wrong with that, or they might be doing something where they’re controlling the flow of food to the parent which is one way to manipulate somebody who is old and not able to resist undue influence. But, that doesn’t mean that every time you see one of these things that it’s bad, but it definitely should raise your attention and you should look into it.

So those are some of the warning signs that you should be on the lookout for in possible undue influence against one of your loved ones.

 

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Hi, this is Stewart Albertson with Albertson and Davidson and we get this question every now and then, and the question is: Do I really need to hire a lawyer for my trust contest or will contest or can I do it on my own? Can I go order a book from Nolo press or from Amazon and just figure out how to do this myself? And here’s the answer: No. That could be the end of this article right now, but no, you cannot handle your own trust contest or will contest.

I know that sounds like a self-serving statement because I’m a lawyer and I get paid to bring these cases, but this would be like asking you, can you handle your own gallbladder surgery? Can you handle your own appendectomy? Can you handle your own heart surgery? No, you’re going to have to hire professionals to do that if you want it done right. So get the books from Amazon, get the books from Nolo press so that you can educate yourself on what a trust contest is, a will contest, and how they work so that you can go in and sit down and have a good conversation with a professional lawyer to determine the best course of action moving forward. But if you really want a trust contests or a will contest done properly, you’re going to have to use a professional lawyer who has the experience in the field to handle it properly.

 

Here's your gift ... Now give it back!!

Can I give you a gift and then sue to get it back? That’s the scenario Chapman University (located in Orange, California) faced earlier this year when a leading philanthropist (and all-around rich guy) Mr. James Emmi pledged $12 million to Chapman University…and then changed his mind about it. Or did he? According to a report in the Orange County Register, Mr. Emmi actually never intended to make the gift in the first place. Instead, the lawsuit alleges, Chapman University President James Doti put undue pressure on Mr. Emmi to make the gift. Mr. Doti is alleged to have wined and dine the elder Mr. Emmi and pressured him to make the $12 million commitment to the University, which is alleged to be 60% of the Emmi’s total estate value.

Less than a month after its filing, the lawsuit was settled under a confidential settlement agreement that appeared to allow Chapman University to keep $3 million that was received by the University, and most likely cancelling the remaining $9 million obligation.

When the lawsuit was filed by Mr. Emmi against Chapman University, they used a cause of action well known to us: Financial Elder Abuse. Yes, the application of that statute can be far ranging. The allegations were grounded in the idea that Mr. Emmi was susceptible to inducement and confusion (i.e., undue influence) due to his advanced age. And that Mr. Doti “preyed” on Mr. Emmis weaknesses. Under the Financial Elder Abuse statute, obtaining the property of an elder by the exercise of undue influence is one of the ways in which elder abuse can be proved in court. With the right set of facts and evidence, the undue influence prong can be triggered in a wide array of circumstances, including in the context of a charitable gift.

That does not mean that everything an elder does is the product of undue influence. But it does mean that elder abuse can occur where you least expect it. Most people think of elder abuse as a scam artist stealing an elder’s life savings, but it does not need to be that extreme. Mr. Emmi’s allegations show that even those with substantial means can be the victims of an alleged elder abuse claim.

Must a Trustee Report Elder Abuse?

 

There are certain categories of people who are required by law to report any suspected elder abuse. That includes both physical elder abuse, and financial elder abuse. Under California Welfare and Institutions Code section 15630, any private or public facility that takes on the care and custody (meaning housing) of an elder (elder is defined as anyone aged 65 or older) is a “mandatory reporter”—meaning they must report any suspected physical or financial elder abuse.

Additionally, any financial institution such as a bank or credit union is a mandatory reporter for suspected financial elder abuse. While not every financial institution is good at exercising this requirement, many have become far more sophisticated in spotting and reporting suspected financial elder abuse.

Trustees of private Trusts on the other hand are not mandatory reporters. And since most Trusts created by people during life are private Trust (meaning revocable, living Trusts), most Trustee are not under a legal duty to report any type of physical or financial elder abuse.

But even if a legal duty does not attach to a Trustee, there is a strong argument that a Trustee is under a moral obligation to report elder abuse. And nearly anyone can make a complaint to the Adult Protective Services in the county where the elder is located when suspected elder abuse is present.  The Trustee also may have the right to bring a civil Financial Elder Abuse claim under the Welfare and Institutions Code, which can include a restraining order to protect the interests (and physical well-being) of the elder.

Often financial elder abuse is present when you least suspect it.  Most abusers don’t broadcast their wrongs.  Thus, any suspected elder abuse should be reported and acted upon as quickly as possible.

Casey Kasem died June 15th, and now his daughter claims that Mr. Kasem’s body is missing (as reported by Jane Caffrey with CNN).  Kasem’s daughters and his wife (Jean Kasem) were engaged in a contentious battle over control of Kasem prior to his death.  Now that Kasem has passed, Jean Kasem has moved Kasem’s body from the mortuary where it was kept without telling his daughters.  So the fight continues on even with who makes funeral arrangements and how the body is ultimately laid to rest

Seems ridiculous, but it happens more often than you may think.  So who has the ultimate control over a person’s body after death?  That can be a tricky question to answer.

Let’s start with California’s Health and Safety code that provides what is supposed to be an orderly way to determine who has control of a decedent’s remains after death.  Under Health and Safety Code Section 7100, the following people, in this order, have the power to control the disposition of remains:

1.  An agent given that power under a Health Care Directive.

2.  The surviving spouse, if competent to make decisions.

3.  The decedent’s child, or a majority of children if the decedent had more than one child.  However, a group of children smaller than the majority can act if they cannot get in contact with the other children.

4.  And then parents, siblings of the decadent, and next of kin, in that order.

The problem comes from a disagreement either between the surviving spouse and the agent under the Health Care Directive, or between multiple children.  I have seen both and it always is an ugly fight.

In Kasem’s case, he had a surviving spouse, but she is not the mother of Kasem’s children, which is a natural breeding ground for conflict in many cases.  Add to that a Health Care Directive that named Kasem’s daughter as agent.  That’s enough to pit spouse against daughter in this mess.  And in some cases there can even be a competing Health Care Directive signed shortly before death that further complicates the problem.

The result: a contentious fight between family members attempting to control the remains and disposition of the decedent’s body.  Who wins and who loses?  That’s up for the Court to decide.   What started as a fight during Kasem’s lifetime now will be a drawn out Court affair lasting long after he is gone.  So much for resting in peace.