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Hi, this is Keith Davidson at Albertson & Davidson.  In this video, we’re discussing trustee surcharge.  How do you hold your trustee liable for the damages that they have caused to your trust estate?

The number one way that you hold a trustee liable is you have to go to court on a petition asking the court to order the trustee to pay damages back to the trust.  That’s what we call a surcharge.  And you’re allowed to ask for a surcharge for any harms and losses that the trustee has caused to your trust estate.

You usually start by filing a petition with the court asking the court to order a surcharge against the trustee.  But you have to know what it is want to surcharge.  So if you know that the trustee has caused damage by taking a specific act, and you know how much the damage the trustee has caused, then you can go straight forward, file your petition and ask the court to order the trustee to pay that back.

If, however, you’re unclear as to the damage that the trustee did, then you’re going to have to do a little bit more than that.  And that comes in a couple of different way.  One way is you could file a petition asking the court to order the trustee to account.  So then the trustee has to do a formal trust accounting.  And that essentially will become your roadmap for whatever the trustee surcharges will be.  Because in that accounting, you should be able to see where the problems arose.

Also, using that accounting, you can start doing discovery, issuing subpoenas, getting bank records, getting financial statements, getting records from escrow companies.  And you can start piecing together the information yourself and finding out where the damage occurred to your trust.  Once you have that information, then you can ask the court to order the surcharge.

So it really depends on what information you have heading into the case.  The more information you have, the more likely you are to go straight into the petition asking for a surcharge.  The less information you have, you’re going to have to take the first step of becoming informed and then you can sue the trustee for surcharge.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to talk about remedies that the court can use to fix your trust problem.  Under Probate Code section 16420, the court has a right to take certain actions against trustees in order to fix whatever problem you’re having with your trust.

Number one on that list is that the court can compel the trustee to take a certain action.  So, for example, if you’re entitled to a distribution of a house from a trust and the trustee refuses to make that distribution, the court has a right to order the trustee to take that action and distribute that asset.  And typically, that’s something that we’ll do on a petition for instructions.  So we’ll file a petition for instructions, that’s the name of the petition, and we’ll ask the court to compel the trustee to take an action.  And we’re allowed to do that and the court’s allowed to take that action under Probate Code section 16420.

The next thing the court can order the trustee to do is not take an action.  So let’s say the trustee is going to do something that will harm the trust.  Maybe they’re going to sell a property at below market value.  The beneficiary can come in and ask the court to not allow that action to take place.  And that’s called enjoining the trustee and the court can do that.

The third item the court can do is require the trustee to pay damages back to the trust for whatever harms the trustee has caused to the trust estate.  We’ll talk in a separate video about how you get to the amount that the trustee has to pay back.  But, for purposes of this video, you should know that the court can order the trustee to pay money back to the trust.  That’s one of the remedies the court has.

Number four is that the court can order the appointment of a temporary trustee or what we call a receiver to manage the trust estate under the court determines whether the main trustee should be permanently removed.  By appointing a temporary trustee, the court can have a neutral third party step in, make sure that everything’s safe during the litigation, and see whether or not whether the trustee should be permanently removed.  This is a common remedy that we ask for in a lot of our trust cases, and this is something the court has the power to do under the Probate Code.

Number five follows that up, which is the court has the right to permanently remove a trustee.  That typically takes a trial, a removal trial, where you have to go and present evidence.  But if the court is persuaded that this trustee should be removed for breaching their fiduciary duties, then the court has the power to apply that remedy and remove the trustee.

Number six, the court has the right to set aside trust actions.  So whatever action the trustee has taken, the court can set that aside.  There’s one exception, however, if the trustee has sold assets to a third party in an arms’ length transaction and that third party has paid full value in that transaction, for whatever asset or whatever the situation was, then the court cannot set aside that action.  Because, the law presumes that this innocent third party didn’t know what was going on with your trust, didn’t understand that there was a problem.  They shouldn’t be penalized for that, the trustee should.  So, instead, the trustee would just have to pay damages back to the trust rather than setting aside an action.  But barring that, the court can set aside trust actions as one of the remedies.

Number seven, the court has the right to reduce the compensation of the trustee as a remedy.  So if a trustee has breached his or her fiduciary duties to the trust and they’re requesting fees, the court has the right to reduce those fees, or even eliminate them altogether, if that was necessary to meet the ends of justice to make the trust whole.  That’s one of the remedies has.

And, number eight, the court has the right to impose an equitable lien, sometimes also referred to as a constructive trust, and to allow you to go out and trace assets.  So if the trustee has taken assets out of the trust, put them in their own accounts, put them in their own name, the court has the right to force the trustee to give those back to the right beneficiaries.  And that’s usually done through an equitable lien, constructive trust, or by allowing the beneficiaries to trace the assets and see where they ended up and pull them back into the trust.

So those are the remedies that the court has to try and fix your trust problem.

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Hi, this is Stewart Albertson of Albertson & Davidson and I want to talk to you briefly about the meet and confer requirement that is imposed on us by many statutes in California law.

A meet and confer is where we are required as lawyers to meet with one another, whether it is in writing or on the phone, or at lunch or wherever we might meet, maybe at the courthouse after a hearing.  And discuss certain issues in a case to see if we can come to resolution of the issues ourselves, just the lawyers.  And, as you can probably guess, it rarely happens where lawyers come to resolution on these matters.  But the law wants us to attempt to try to resolve any differences we have in the case before we go and file any type of motion with the court.

We see these meet and confer requirements in discovery all the time.  So we propound discovery to the other side, which are written questions, saying that you must respond to our written questions within a certain time frame.  Generally thirty days.  Once those answers come back in, if we’re not satisfied that they were answered properly, under the discovery act, we can’t just run off to court, file a motion, waste the judge’s time, waste the court administrator’s time with a motion, prior to doing what we call a meet and confer.  And it’s a lengthy process.  We’re required to draft a long meet and confer letter to the opposing attorney and explain why we think they need to answer the discovery better.  Many times, they’ll tell us they think they’ve answered discovery just fine and if you think you need to file a motion to compel, go ahead. And then we file the motion to compel and ask the court to order the other side to answer the questions as required by the discovery act.

It’s important, though, that we do that meet and confer process first or the judge is not going to listen to our motion.  The judge wants to make sure that we at least attempt between the lawyers to resolve the differences before we run off to court and file a motion.

Recently, California amended several of its statutes regarding demurrer and motion for judgment on the pleadings.  And those were pleadings that we generally see right at the beginning of a case.  And we saw many defendants using these just as a response to any case that was filed against their client.  They would just automatically file a demurrer or a motion for judgment on the pleadings.

California law says now we want the lawyers to meet and confer prior to filing a demurrer or motion for judgment on the pleadings.  The whole idea behind a meet and confer, again, is for the lawyer who are hopefully responsible adults to sit down, analyze the case, analyze the chances of winning or losing a particular motion, whether it’s a demurrer, motion for judgment on the pleadings, motion to compel additional discovery.   Have them meet and confer and hopefully resolve that matter between themselves as responsible adults before we have to go tattle to the judge and get the judge to make a decision about what needs to happen.

I will tell you this – judges generally don’t like to have lawyers fighting in court over something that they should have been to resolve outside of court.  So your lawyers will attempt, hopefully, to do the best they can to resolve matters through the meet and confer process.  If they’re unable, then they’ll file whatever motion they need to to enforce your rights.

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Hi, this is Stewart Alberton with Albertson & Davidson and we’ve been discussing contingency fee agreements and the benefits, the advantages and disadvantages to entering into a contingency fee agreement.  And I want to talk to you about one more benefit on the contingency fee agreement is the costs that your attorney agrees to pay while the case is going forward.

Now, most costs are not significant.  They’re real money, but they’re not significant, such as the filing fees, fees to get a court reporter to do a deposition, subpoena fees.  We’re talking ten, twenty, thirty thousand dollars in the life of a case.  Maybe more, if it’s a bigger case, but it’s not going to be too much more than that.

But there is one set of costs that go really high, really fast in a trust and will case where lack of capacity or undue influence is an essential issue.  And that has to do with hiring an expert.  An expert in this case would be either a neurologist or a psychiatrist.  Somebody that specializes in forensically going back and looking at medical records to determine if a decedent was, either they did lack capacity or where they subject to the exercise of undue influence.

These experts are very good people and so we’re not upset at them for how much they have to bill us, but we do want to point out that it is quite expensive to hire them.  In many cases, it will be ten to fifteen thousand dollars just to hire them, and then, because they have so much education and experience, and it’s such a specialized area, they charge generally anywhere between four hundred and a thousand dollars an hour.  And that time is spent reviewing medical records, coming to determine opinions.  If a decedent did in fact lack capacity at the time a trust or will was created, or if the decedent was subject to the exercise of undue influence.

Sometimes you have to have more than one of these experts in a case.  So let’s say that you hire a lawyer on a contingency fee agreement.  Any trust and will contest where you have to hire one of these experts, and that expert bills out at say $40,000 for the life of the case.  If you lose that case at the time of trial, which is a bad result for everyone and nobody hopes we lose, but if you do lose that case at the time of trial, the lawyer is the one that is stuck with the $40,000 bill.  Not you, the client.  So that’s just one more benefit of contingency fee agreements.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about an issue that we are seeing more and more of and that has to do with statute of limitation.  Statute of limitation being the time period that you’re allowed to bring a lawsuit, whether it’s in probate court or civil court.

What we’re seeing and this video may be more to the practicing attorneys out there, but it’s also something the beneficiaries will want to be aware of.  We’re seeing people miss these statute of limitations in trust and will cases and we believe the reason for that is is because it’s a complex analysis to determine what particular statute of limitation applies at what particular time at what particular proceeding in a trust and will contest matter.

Let me give you an example from another area of law to show you why we’re having issues with the trust and estates statutes and we’re seeing those come up more often where people are making mistakes.

Let’s talk about personal injury.  Personal injury is very simple.  If somebody crashes into you in a car.  If somebody punches you in the face, you have two years to bring a lawsuit against that person before the statute of limitation runs.  In other words, you can do anything you want for up to two years, as long as you file your lawsuit before the end of two years.  You can bring a personal injury action against the person who hurt you.

Well, let’s come back to trust and estate law now.  It’s not that simple.  There’s various statute of limits that apply at times.  Let’s talk about the bright line statute of limitations pertaining to decedents.  The general rule is that when someone dies, and everyone should know when someone dies, that’s pretty easy to ascertain.  You have one year to make a claim against that person.  But that year can be shortened to as little as 120 days, depending on the circumstances.

If a petition for probate goes out and you have a will that’s admitted into probate.  Once that’s admitted into probate, now you have 120 days to file a claim against the decedent.  To make matters worse, if you’re doing a certain type of claim against the decedent, you’re going to have what we call a creditor’s claim in the probate estate of the decedent and you’re going to have to file a lawsuit all before the end of the claim period running.

In other types of cases, you only have to file the creditor’s claim but you can file the lawsuit after a year.  And so this becomes confusing to many lawyers as it may be to you now as I’m trying to explain it.

There’s also another complication where you have financial elder abuse claims.  This is where someone has a done a wrongful taking against somebody that’s a dependent adult or somebody that’s older than 65 years of age in California. We don’t want people abusing our elders.  We don’t want them taking their finances in a wrongful taking.  So the statute allows us to sue somebody, the wrongdoer in that case, for up to four years after the wrongful taking.  So we literally can have four years going by, and as long as we get the financial elder abuse case on file before the four years runs, chances are, we beat that statute of limitations.  However, if you were given statutory notice under a trust, which gives you 120 days within which to file a trust contest, and you do not file that trust contest within 120 days, you may be precluded from filing a financial elder abuse claim even though it gives you four years.

One more thing to add and that would be what if the drafting attorney, the attorney that drafts the trust or will, what if they have made a mistake and they hurt you as an intended beneficiary of that estate plan.  In that case, you have one year from date of notice that you knew you were harmed by the attorney’s drafting, to file a legal malpractice case against that attorney.  If you don’t have notice and you discover it later, more than one year after the event took place, you may be able to argue you didn’t have actual knowledge or that you shouldn’t have known about the harm that took place, and you may be able to use a four year statute of limitations to sue the attorney for legal malpractice.

The whole point of this video is not for you to understand all of these varied statute of limitations, some as short as 120 days, some as a long as a year, some as long as four years, is to show you that there’s complexity in each one of these trust and estate cases, you need to have expert analysis of your case so that somebody can see what the facts and circumstances are and what statute of limitations are going to apply to your case moving forward.

If you miss a statute, chances are you’re going to be barred forever from bringing your claim forward.  So even those these are complex, difficult to understand, it’s something at the very beginning of a case you have to spend the time to understand, make sure you’re not missing anything, especially on the shorter ones such as the 120 days, because that one comes and goes very quickly.

Hopefully I haven’t confused you too much.  I’ve confused myself a little bit in going over all this.  All I want to point out is, this is a complex areas, these statute of limitations in trust and estate matters, make sure you get somebody that’s qualified to explain them to you and you understand the time limits you have to bring your claim forward in either probate court or civil court.

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Hi, this is Stewart Albertson with Albertson & Davidson.  I want to talk to you about contingency fees, and how they can give access to some beneficiaries who don’t have the ability to pay lawyers on an hourly basis.  The traditional way that many people hire lawyers is they give that lawyer a retainer (for example, $10,000-$20,000 retainers are common), and then the lawyer bills against that retainer, according to their hourly rate. When that retainer runs out, the lawyer asks for more money.

However, beneficiaries are not in a position where they can pay lawyers to represent them in a trust contest or a will contest case. So, there is an option for contingency fee.  Now, keep in mind, you generally do better overall to hire a layer on an hourly basis, if you can, because you’ll spend less overall on a case than you will if there’s a successful outcome in a contingency fee case, as far as attorney’s fees go.

Let’s give an example.  You hire a lawyer to handle a case for you.  You’ve got a million dollars at stake and you pay that lawyer $100,000 in hourly fees to get you your access to that million dollars.  Well, that’s a pretty good result for you. You paid $100,000 in hourly fees to that lawyer and you end up getting the million dollars that was supposed to come to you.

If you didn’t have the money to pay the lawyer on an hourly basis, you could hire that same lawyer on a contingency fee basis, which is a percent of the recovery.  Generally speaking, most cases are going to be 40% in California.  So, using the same example, a lawyer works the case for a year and a half or two years, and just before trial, the case settles and it’s a million-dollar recovery to you.  If you apply the math at 40%, that would be a $400,000 attorney’s fee and the balance would go to you.  You can see the difference.

It generally makes sense to hire a lawyer on an hourly basis, versus a contingency fee basis, but if you don’t have the ability to hire a lawyer on an hourly basis, then the best option for you to do is to consider the contingency fee, which is a way to recover something for you that you normally couldn’t get access to if you didn’t have a lawyer willing to take your case on a contingency fee basis.  So that’s just a little bit on how a contingency can work to return assets to you that are rightfully yours.

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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 Stewart Albertson with Albertson & Davidson and I want to talk to you just briefly about three important sets of documents that we need to get quickly in any type of trust or will contest.  So this happens when a client has already shown up and hired a lawyer.  They’ve already filed their trust contest or their will contest and now the question is what documents do we need to begin the case?  To begin our discovery, to begin strategizing how we’re going to overturn the trust or the will that is a product of undue influence or lack of capacity.

And these come down to three subpoenas and they should go out quickly.  You want to get these documents quickly, to make sure you get the full set of documents, and then you want to have the right people review them once you have them so they can help shape your case going forward, help shape your discovery and, hopefully, shape a successful outcome in invalidating a trust or a will that is the product of undue influence or lack of capacity.

The first set of documents that we want to subpoena right away are from the estate planning attorney.  So the estate planning attorney who drafted the trust or the will or both, we want to get a letter to them immediately telling them to safeguard their file and they can be accept – expecting a subpoena.  Once they receive that subpoena, they have a short time to respond and most estate planning attorneys will send us their files so that we can review them to see what were the circumstances around the creation of the trust or the will.

Sometimes, these attorneys though, they decide they don’t want to send the file and that’s not a problem.  Because then we can file a motion to compel, is what we call it, file that in court and we’ll get a judge to order them to give us the documents.  In many cases, once we file this motion to compel, the estate planning attorney will agree and send over the files.  So that’s the first set of documents you must get in a trust and will contest – and the sooner, the better!

The second set of documents will be the medical records and these are rich – especially if the decedent had multiple providers.  So you want to subpoena out to every single medical provider that you are aware of.  Once you have the first set of medical records, there’ll be other doctors, other hospitals, other medical providers that you’ll in those medical records.  In many cases, neurologists and those are really good medical records to get – so you’ll want to send out subsequent subpoenas for those documents as well.  Most big medical providers are very good at responding to subpoenas and in short order, if you give them a subpoena that’s well drafted and it details exactly what you’re looking for, you will have medical records that you can review to look for things such as dementia, Alzheimer’s and other mental/cognitive deficits that may have impacted the decedent at the time that the will or trust was created that you’re alleging was the product of undue influence of lack of capacity.

Finally, the last set of records are the financial records, and they’re also rich.  Especially if there’s a wrongdoer who did exercise undue influence over your mom or dad before they passed away.  This person generally can’t wait to get their hands on the money until the person dies, so they get their hands on the money during lifetime and they start taking a lot of cash withdrawals from the ATM, they’ll write checks to themselves calling them cash.  They may even sign them for the decedent, your mom or your father, and take this money and start spending it, using it for whatever it is they want to use it for.

So once you file the trust or will contest, you want to jump quickly on these three sets of documents.  Once you have them, they’re going to go a long way in getting you to a good settlement, or you’re going to be able to prove at the time of trial that, in fact, undue influence or lack of capacity did take  place in the creation of the will and the trust.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about undue influence cases.  What makes a good undue influence case and what makes a not-so-good undue influence case?  And let me just set this out as we meet with lots of people that come into our office saying, “Hey, I want to contest my mom or dad’s trust or their will because I know that my brother Bob exercised undue influence over my parents and I’ve been written out of the will or the trust and I will receive no inheritance and I’ve got the best evidence you’ve ever seen Mr. Albertson, or Mr. Davidson, and we’re going to come in here and we’re just, this is going to be a slam-dunk.  You’re going to have no problem winning this case!”

The type of evidence you need to have a good undue influence case, it’s a high bar.  The burden of proof that’s required for you is high.  It’s not easy to invalidate a trust or a will.  So that begs the question, “OK, well then what makes a good undue influence cases versus a not-so-good undue influence case?”

Well, let’s talk about some of the elements that you need to meet to prove that undue influence did, in fact, take place.  One of the first things we have to show is we have to show that the decedent, your parent in this case, was a vulnerable individual.  We can show that several ways.  The most easy way to show that is that they’re over the age of 65 or they’re a dependent adult.  So if they’re over 65, chances are, you could show that they have some vulnerable to them.  The State of California has addressed financial elder abuse and said, “Look, we see a lot of financial elder abuse happening in our state, so we want to stop that.  And so what we’ve done is we’ve set out some criteria for people to look at.  This, these are the elements that we look to to prove an undue influence claim.”

The other way you can look to see if a person is vulnerable is what if they have some type of a medical issue?  What if they have some diagnosis for dementia or Alzheimer’s or anything of the like that affects their mental cognition?  That is something that also will support the element of the decedent being vulnerable.

We also want to look to other elements.  What about the actions or the tactics of the wrongdoer?  The wrongdoer is the person that exercised undue influence over the decedent.  And a lot of times this is not something that you see that’s nefarious or evil or somebody yelling or screaming at the decedent, it’s actually done in a very nice manner.  And it happens like this:  The wrongdoer comes to the decedent while they’re still living and says, “How come your son, Johnny, doesn’t come visit you anymore?  Oh, you know, I don’t think Johnny cares about you.  It’s too bad that Johnny’s not here to take care of you like I’m taking care of you.”  And it’s just done over time.  And, of course, this person already – the decedent already is vulnerable, because they’re older, over 65 or older, they may have a health issue, and so now you have this person who is doing deceitful actions and tactics to influence the elder that their son Johnny really doesn’t care about them and we see this element time and again in a good undue influence case.

We also want to look to another element and that is what type of authority did the wrongdoer have over the decedent?  And authority can come in many forms.  Authority can be that this is the person’s agent, under their durable power of attorney, or maybe they’re already the trustee of the trust.  They can also be somebody that the decedent relies on for their necessaries of live, such as daily medication.  Somebody to drive them to doctor’s offices.  Somebody to help change their diaper in bed.  Somebody that makes sure that hospice is taking care of them.  Here we see the decedent, the elder, is being very reliable on this person who has this apparent authority over them.

The last element that you want to flush out in a good undue influence case is there is an inequitable result.  This is most easily shown in cases where the decedent had a preexisting estate plan that gave everything equally to all of their children.  And we see this time and again.  And then just before they die, they make a change to that trust that did give everything equally to all their children, and they give everything to one person, either one of their children or the wrongdoer who has come into their life and has now exercised undue influence over them.

So in order to have a good undue influence case, where you can meet the burden of proof which is a high bar in the State of California, you’re going to have to show that the victim was vulnerable, that the wrongdoer used actions or tactics that were deceitful, that the wrongdoer had apparent authority over the decedent, and the results that the wrongdoer got was inequitable.  If you can pull all of those elements together through a totality of the circumstances and showing the evidence, you probably have a good undue influence case.