How many times in life do we falter because we or someone helping us fails to ask the right questions?
We’ve all heard, seen or experienced circumstances where friends or relatives suffered, maybe died, because someone responsible for their health failed to identify a safety or health problem.
They failed to ask the right questions.
I have my own experience with medical diagnosis and the right questions. Nearly 30 years ago I woke up at 3:00 in the morning with symptoms that mimicked a heart attack. My wife sprang into action, paramedics arrived, and I was soon on my way to an emergency room. Appropriate tests for heart disease and injury were accomplished. I came out well.
Maybe it was stress. We took more vacations, watched my diet [...]
An unexpectedly large number of people open safe deposit boxes, leave them alone for several years, and forget the box ever existed. According to the Sacramento Bee, the California State Controller’s Office had the contents of more than 138,000 safe deposit boxes under its control in 2017, including more than 75,000 US Savings Bonds worth more than $30 Million. Sometimes banks move, and sometimes box holders move, but the usual way in which boxes get forgotten is when someone dies.
While safe deposit boxes can, and usually do, serve a useful purpose of safeguarding valuables, you should know that they aren’t 100% safe. Take, for example, a 2007 case reported on a Consumer Reports blog. A woman’s aunt showed up at a Bank of America [...]
This is the biggest mediation year in our law firm’s history. The milestone is significant for our clients, their adversaries and all lawyers involved in the prosecution and defense of estate, trust and elder financial abuse litigation.
Mediation is a reality in estate disputes that shouldn’t be ignored until the parties are on the courthouse steps awaiting a courtroom for trial. That said, it’s not unusual for a client to express doubts about entering into mediation. This is understandable.
Does our willingness to mediate telegraphs weakness? Good question – so, let’s look at the reality. Recent studies indicate that only about 1% of filed tort cases are actually tried in the federal courts. I’ve heard state court judges say [...]
Tony Curtis was a Hollywood icon, an actor who appeared in more than 100 films, a World War II veteran who served honorably in the Navy aboard a submarine, and an actor who was nominated for two Golden Globes, one Emmy and one Oscar. He was a major star who acted alongside Frank Sinatra, Cary Grant, Jack Lemmon, and Kirk Douglas. He also starred with Marilyn Monroe in their hit 1959 comedy “Some Like It Hot.”
Despite his enormous success, his death was hastened by years of cigarette smoking, alcoholism, and cocaine addiction. When Curtis died in 2010 at the age of 85, he left behind a rich film legacy, 6 wives, 5 children, and 7 grandchildren. In a surprise to them, however, he left behind only one heir who inherited his $40 Mi[...]
Estate and trust lawsuits are comparable to a first-response operation after a crime or disaster has occurred. The police arrive to the scene of a crime, firefighters race to a burning house, and estate and trust litigators take legal action in court to stop wrongdoing and recover assets. In the aftermath of any incident, first responders will file an after-action report to determine what caused the emergency situation. In the same way, trust litigation attorneys will assess the risk factors that led to estate disaster.
What we’ve seen in our protection of beneficiaries across California fits into specific patterns of risk. While every story of estate fraud or elder financial abuse is unique, they share common features that raise the t[...]
Just yesterday I received a call on my answering machine. Supposedly it came from the IRS. The message started off in a robotic voice,
"This is the IRS. You owe our agency a large sum of funds in back taxes. You must call us at such-and-such a number by tomorrow, or we will issue a warrant for your arrest."
Needless to say, I didn't bother calling the scammers back. I found the message somewhat humorous, but the truth is that millions of Americans receive these bogus calls and emails every week. And while most people will realize they're dealing with an attempted fraud, a small percentage don't realize they're being deceived. It's usually the elderly who fall for this form of scam because of conditions like dementia, Alzheimer's and g[...]
The existence and influence of dementia is often a pivotal fact in estate and trust litigation. The effects of dementia on a testator (the maker of a will) or settlor (the maker of a trust) will be scrutinized in different ways.
In wills a court must determine whether the will maker had capacity to:
(1) understand the nature of the testamentary act,
(2) understand and recollect the nature and situation of his or her property, and
(3) remember and understand his or her relations to immediate family members and those whose interests are affected by the Will.
Determining capacity in trusts sets a higher capacity standard. Finding capacity for a settlor requires that the individual be able to communicate, understand and appreciate:
Santa Clara County is rich in people, talent and wealth. It is home to Apple, Intel and Google. It is also a place of astonishing residential values. Santa Clara’s skyrocketing real estate prices are shattering long held expectations of retiring in place. They also affect how trust and estate disputes arise and are handled.
A large percentage of estate and trust disputes revolve around the family home. There are many examples:
A caretaker convinces an elderly homeowner with dementia to deed over the elder’s residence shortly before the resident’s death;
A child living in the home of his parent uses undue influence to have his parent amend her trust to cut out his three siblings as beneficiaries of the trust;
And a mercenary ne[...]