I’m Mike Hackard from Hackard Law. I speak, write about and litigate California financial elder abuse cases. Given California’s burgeoning elder population, it is little wonder that people want to hear more about this subject. Financial elder abuse is surely on the rise.
The legislature is gradually responding to provide greater remedies against those who commit financial elder abuse. The civil law concepts giving rise to financial recovery are fairly straightforward. We will look at a case of undue influence that results in financial elder abuse.
So, in an effort for all of us to better understand the nature of financial elder abuse cases, let’s assume a set of facts. The facts that we are assuming reflect common scenarios in this area of the law.
The elder, Dorothy, was born in 1931 in San Francisco, California. Dorothy married George in the early 1950s and settled down across the bay in Oakland. Dorothy and George had two children – a son named Bart and a daughter named Mary. George died in 2000, and Dorothy became a widow. Bart and Mary survived their father.
In 2005 Dorothy hired an East Bay lawyer and created a revocable living trust. This is referred to as the “Dorothy Trust.” Bart and Mary were to receive equal shares of Dorothy’s trust estate under the terms of the Dorothy Trust.
Dorothy hired the original East Bay drafting lawyer, and The Dorothy Trust was amended in the summer of 2016 (“the First Amendment”). The First Amendment made only minor changes in cash gifts and did not change the equal share distribution plan under the Dorothy Trust.
Bart, unemployed and with a history of substance abuse, moved in with his mother in December 2016. Bart did not pay his mother rent.
At the time that Bart moved in, his mother had health and physical infirmities and could not manage her financial affairs. Dorothy had cognitive issues that affected her memory.
Dorothy became easily dominated and controlled by Bart, who now lived in her house. Bart made it increasingly difficult for Mary to visit or to call her mother. Bart isolated his mother from her friends. Bart also kept Mary’s children away from Dorothy, their grandmother. Bart made false and disparaging remarks to his mother about his sister, Mary. Bart took control over all of Dorothy’s financial matters.
Shortly after Bart moved in with Dorothy, she shared the contents of the Dorothy Trust and its First Amendment with Bart and Mary. Bart was not happy with the equal distribution plan. In April of 2017 Bart took his mother, Dorothy, to a new Oakland lawyer, to procure a new or revised trust. Bart told his mother to keep the meeting with the lawyer secret.
The new lawyer was unfamiliar with Dorothy and her family. Bart sat with his mother in the meeting with the new lawyer and indicated that his mother wanted to change her trust by removing Mary as a beneficiary of her trust and estate. The new lawyer drafted a new “Restatement of the Dorothy Trust” which appointed Bart as the successor Trustee of her trust and provided that the estate would be distributed entirely to Bart.
Dorothy died in January of 2019. Mary learned of her mother’s death from Dorothy’s neighbor a few days after Dorothy died.
Bart wouldn’t respond to Mary’s phone calls and would not share a copy of the Restatement of the Dorothy Trust. Mary finally received a copy of the Restatement after Hackard Law wrote Bart a letter demanding it.
Mary learned that Dorothy’s trust assets at the time of her death are a residence currently valued at $1,500,000 and $500,000 in a Wells Fargo Bank account. Mary believes that there is strong evidence that Bart unduly influenced Dorothy to make the change to her trust that left everything to Bart.
Hackard Law represents Mary, the plaintiff, against Bart, the wrongdoer, in an action against Bart for financial elder abuse. We also represent Mary in a probate action to set aside the trust.
The actions are in the Alameda County Superior Court. The civil lawsuit is brought pursuant to the California Welfare & Institutions Code. Mary is allowed to bring the civil lawsuit as a person who would succeed to Dorothy’s estate if she established undue influence by Bart.
Mary is claiming economic damages for one-half of the fair market value of Dorothy’s house and one-half of the Wells Fargo Bank deposit accounts as of Dorothy’s date of death. A jury will hear the civil case. The jury will ultimately hear jury instructions approved by the trial judge. The trial judge will instruct the jury that violations of the Elder Abuse and Dependent Adult Protection Act are established by showing that:
- Bart obtained property of Dorothy, an elder.
- Dorothy was 65 years of age or older at the time of the act.
- Bart obtained property for a wrongful use by undue influence.
- Dorothy was harmed; and
- Bart’s conduct was a substantial factor in causing harm to Dorothy.
The jury will also be told that one way that Mary, the plaintiff, can prove that Bart obtained the property for a wrongful use is by proving that Bart knew or should have known that his conduct was likely to be harmful to Dorothy.
The jury will also be told that Bart obtained property if Dorothy was deprived of a property right by a will or trust.
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm.
The jury will also be instructed that undue influence means excessive persuasion that overcomes another person’s free will and causes the person to do something or to not do something that causes an unfair result.
In determining whether Bart exerted undue influence on Dorothy, the jury must consider the following:
- Decedent, Dorothy’s vulnerability. Factors to consider may include, but are not limited to, incapacity, illness, disability, injury, age, education, impaired mental abilities, emotional distress, isolation or dependency, and whether Bart knew or should have known of decedent Dorothy’s vulnerability.
- Bart’s apparent authority. Factors to consider may include but are not limited to Bart’s position as a fiduciary, family member, and/or care provider.
- The actions or tactics that Bart used. Actions or tactics may include, but are not limited to, all of the following:
Controlling decedent Dorothy’s necessities of life, medications, interactions with others, access to information or sleep;
Using affection, intimidation, or coercion;
Initiating changes in personal or property rights, using haste or secrecy in making those changes, making changes at inappropriate times and places, and claiming expertise in making changes.
- The unfairness of the result. Factors to consider may include, but are not limited to, the economic consequences to Dorothy, any change from decedent Dorothy’s prior intent or course of conduct or dealing, the relationship between any value that decedent Dorothy gave up to the value of any services or appropriateness of the change in light of the length and nature of the relationship between decedent Dorothy and Bart.
Evidence of an unfair result, without more, is not enough to prove undue influence. Mary and Hackard Law will pursue this case through all the preliminaries to a trial. While many cases settle before trial, Bart may be too obstinate to ever resolve the case early. If the case goes to trial and all of the evidence is presented, arguments made, and the jury duly instructed, we will seek a judgment that gives Mary a recovery from Bart as an individual and as trustee of the Restatement Trust of one-half of the fair market value of Dorothy’s house ($750,000) and one-half of the Wells Fargo Bank deposits ($250,000).
The Court will have to address issues that cannot be presented to the jury. These issues include whether the Restatement Trust is valid and whether Bart should be deemed to have predeceased Dorothy in accord with Probate Code Section 259. While this Dorothy, Bart and Mary case is fictional, it is very similar to cases that Hackard Law handles every business day of the year.
Hackard Law takes substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for his wrongdoing. We regularly litigate in California’s major urban counties including Los Angeles, Santa Clara, Sacramento, San Mateo, Contra Costa and Alameda.
If you would like to speak with us about your case, then call us at 916 313-3030. We’ll be happy to speak with you.