I am seeing more situations where the elder abuse criteria of California Probate Code Section 259 are applicable or could become applicable to disinherit the abuser.

In the circumstances listed below Section 259 disinherits a person who is found to have committed elder abuse. However, Section 259(c) also in relevant part states: “This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.” Thus, in these situations it might be argued that Section 259 is not applicable in its entirety.

Based on situations that I am seeing, the applicability of Section 259 also may raise other issues that the statute might not address, including, for example, when (how long ago – what if it was 5-10 years ago, for example) did the elder abuse occur, what if the decedent elder and the abuser reconnected and the decedent elder legitimately and without undue influence really wanted the abuser to inherit, what if the decedent elder subsequently executes a new will or trust that includes a representation by the preparing attorney or a qualified psychologist stating that the elder is competent and not subject to abuse at the time that the subsequent new will or trust is executed (although this situation might be addressed by Section 259(c)), what if it can be established by clear and convincing evidence that the abuser really did subsequently rehabilitate and helped or provided significant assistance to the decedent elder, and whether the legislature intended the statute to include some criteria for the severity of abuse?

In everyday life the above issues and situations are not necessarily unusual although they might not be addressed by the relatively simplistic wording of Section 259. These can be problems where the Legislature enacts a statute with good intent and for good purpose but possibly lacking in detail – the result can create legal and enforceability issues for both people who wish to enforce the statute and for people who believe that it shouldn’t apply under the circumstances of the case.

Section 259 provides as follows:

“259.  (a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply:

(1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult.

(2) The person is found to have acted in bad faith.

(3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent.

(4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.

(b) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.

(c) Any person found liable under subdivision (a) or convicted under subdivision (b) shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) or (b), whether that person’s entitlement is under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in Section 39, if the instrument nominating or appointing that person was executed during the period when the decedent was substantially unable to manage his or her financial resources or resist fraud or undue influence. This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.

(d) For purposes of this section, the following definitions shall apply:

(1) “Physical abuse” as defined in Section 15610.63 of the Welfare and Institutions Code.

(2) “Neglect” as defined in Section 15610.57 of the Welfare and Institutions Code.

(3) “False imprisonment” as defined in Section 368 of the Penal Code.

(4) “Financial abuse” as defined in Section 15610.30 of the Welfare and Institutions Code.

(e) Nothing in this section shall be construed to prohibit the severance and transfer of an action or proceeding to a separate civil action pursuant to Section 801.”