A decedent's capacity at the time of making a will or a trust does not cover or legitimize all estate or financial elder abuse wrongs. This is a truth often ignored or misunderstood by estate and trust wrongdoers as well as estate planners who unknowingly participate in an estate plan tainted by undue influence or financial elder abuse.
Probate, estate and trust litigation has long been characterized as a fight over a decedent's capacity to make a will or a trust. Better understanding of the elements of undue influence coupled with California's updated elder abuse statutes make the inquiry into capacity a factor but not the dispositive consideration in determining wrongdoing against an elder.
We litigate California financial elder abuse cases on behalf of elders and families that have been harmed by the wrongful conduct of an estate interloper. These cases can arise from a variety of circumstances, among them the undue influence of a person or entity causing the elder to make agreements, donative transfers, or testamentary bequests to a person or entity that should have known that the property transfers are likely to be harmful to the elder.
Common elder abuse situations involve death bed transfers, the actions of an alcohol addicted or substance abuser sibling utilizing undue influence to freeze out other siblings from the life or estate of an elder, or the outright taking of an elder or an estate's assets. Litigation in these types of cases may occur in Sacramento, Placer, El Dorado, Los Angeles, Alameda, Contra Costa or many of California's other counties. Wherever the litigation occurs we often encounter a common refrain of defense counsel and/or the estate planner that the elder had capacity at the making of the will or trust.
In all the litigation that we have done not once have we heard from an estate planner that at the time that he or she prepared the estate plan that the elder didn't have capacity. This isn't a big surprise. If the estate planner thought that the elder lacked capacity then he or she shouldn't be preparing an estate plan - it's just that simple. That said, capacity is only one element, and not a dispositive one at that in determining an elder's vulnerability to financial elder abuse.
California Welfare & Institutions Code Section 15610.70 identifies some but not all of the factors that are to be considered in determining the vulnerability of the victim to undue influence.
"Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim's vulnerability."
The way that the identification of these factors plays out in real-life financial elder abuse cases includes the procurement of the elder's medical records, their review by a psychiatrist or neuropsychologist, and testimony of the victim's friends, neighbors and family addressing the other identified elements of vulnerability.
In litigating these cases, we have seen videos of the decedent signing his or her trust, declarations from a physician of psychiatrist affirming capacity and the undue influencer's testimony that mom/dad always wanted to change her/his will or trust because of some real or fathomed reason. Make no mistake - mom or dad can change his will or trust and the law protects this. What the law doesn't protect is the action of an influencer who uses actions or tactics that constitute financial elder abuse. Among such wrongful actions or tactics identified in the statute are:
"(A) Controlling necessaries of life, medication, the victim's interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes."
Lawyers like us who represent aggrieved beneficiaries and heirs are taking a far more aggressive stance when defense lawyers assert that all is well because the decedent had capacity. As previously stated, we have never seen a case where an estate planner claims to have prepared a will or trust knowing that the testator or trustor/settlor did not have capacity. The more important inquiries involve those identified in the statute that shows vulnerability as well as the list of actions that prey on that vulnerability.
If you are an abused trust beneficiary or aggrieved heir and you think that your relative's estate was the subject of undue influence, whether capacity existed or not, and you want to speak to us about your case, call us at Hackard Law. (916) 313-3030. We'll be happy to speak with you.