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California Trusts & Estates | The Evolving Litigation Landscape

CA Estate & Trust Litigation | The Changing Landscape "[I]ncumbents never invent anything new. Incumbents protect their ground. Other people come in with new ideas."[1] (Barry Diller) The staid, predictable world of California's probate lawyers faces challenges brought by increasing public policy pressure to protect seniors from elder financial abuse.

California's regulatory protection for elders is evolving and expanding as the state's baby boomers grow older and in need of increasing safeguards against financial predators. Legislative intent includes a desire to encourage private attorneys to investigate and prosecute civil elder abuse claims. An elder is "any person residing in [California], 65 years of age or older."[2] Attorney's fees are awarded in a financial elder abuse case where the plaintiff proves liability by a preponderance of evidence.[3]

Probate lawyers defending against wrongdoing, grown complacent by the traditional higher "clear and convincing" standard of proof in probate court trials, find themselves on unfamiliar ground in jury trials where the plaintiff must only prove liability for financial elder abuse by a preponderance of the evidence. The availability of financial elder abuse remedies will challenge the hubris of some probate lawyers who in the past have proclaimed their readiness for trial at the very first court hearing. Civil lawyers, long accustomed to the particularities of discovery, motion practice, motions in limine, arguments over jury instructions and tempered by experience, rarely exhibit the same conceit so early in the process.

Greek mythology is full of examples of hubris - characters in authoritative positions that become so proud of their exceptional qualities that they form a delusion of their powers, a delusion that results in reversals of fortune. Baby Boomers, the largest generation in American history, are changing the calculus of traditional estate protections. Legislatures, responsive to the needs of their constituents, are expanding the protection of elders and their estates. Such protections can collide with a prompt and otherwise orderly court-supervised distribution of an estate's assets while elder financial abuse issues are tried in a civil court.

California's heightened clear and convincing proof standard applicable in many estate and trust disputes may be eroding when the economic and social changes prompting the protection of elders influence the transformation. It is said that over the next 30 to 40 years a $30 trillion wealth transfer from Baby Boomers to Millennials will occur. History teaches that economics affects law. We will continue to see just how this economic reality will change the legal system that effectuates efficient wealth transfers while protecting those who transfer the wealth.

If you need to learn more about what you can do to protect family wealth against elder financial abuse, you can call us at Hackard Law. It's our mission to safeguard the rights of heirs and beneficiaries in estate and trust litigation throughout California, including in Los Angeles, Sacramento, Alameda, and Santa Clara. Contact us at 916-313-3030, and we'll be glad to see how we can help you.

California Trusts & Estates | The Evolving Litigation Landscape from Hackard Law on Vimeo.


[1] https://www.wsj.com/articles/is-regulation-ahead-for-giants-of-tech-1508811361

[2] Cal. Welf. & Inst. Code § 15610.27

[3] Id. at § 15657.5

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