The following is a link to a New York Times article re fewer beds for men entering nursing homes.  According to the article, nursing homes like the elderly population are heavily female.  Since Medicaid will only pay for a two-person semiprivate room, and a female will not be placed with a male, it can be more difficult for a prospective male resident to find an immediate room opening thus possibly forcing the family to make other arrangements.  To see the article Click Here.

Here is a link to a blog discussing aspects of will or trust undue influence in California, Click Here.  Undue influence is most often established by circumstantial evidence, and can be difficult to prove.  The basic claim is that the person would not have voluntarily acted as he or she did if he or she had not been improperly influenced.  Not all influence is wrongful.  So . . . you need witnesses and documentary evidence to establish that the person was wrongfully influenced, or at least witnesses who will testify that the terms in the will or trust are not what the person would have voluntarily wanted.  The standard burden of proof is on the person who is trying to establish that there was improper influence.  However, in California there are now several case law and statutory arguments available that may allow the person who is alleging that there was undue influence to shift the burden of proof to the alleged wrongdoer who then must prove that there was no undue influence.  Shifting the burden of proof can be very helpful; however, it is my experience that the court will still initially require the person alleging undue influence to first establish his or her case.  I am currently involved in a will dispute case in Santa Clara County alleging issues of undue influence, fraud, mutual wills and statutorily prohibited transferee.

Christie v. Kimball (California Court of Appeal, Second District, January 26, 2012), holds that the probate court can order an accounting sua sponte (i.e., on its own initiative) under its general powers and that generally an order compelling an accounting standing alone is not appealable.  Let me just say, if there was any doubt, as a general matter, I would like to see judges take more initiative to get the information out there and available.  I do note that there was an argument that the person requesting an accounting did not have legal standing for such.  The trial court stated that it was not determining that issue (i.e., whether the person was entitled to an accounting), but was ordering an accounting for its own benefit so that the court could determine what was going on.  Kind of a slippery slope.  Generally I don’t support having to provide an accounting when standing is lacking; however, many trust and estate issues raise equitable issues, such as in cases where there is reliable evidence of possible wrongdoing, undue influence or misappropriation.  In many of those situations it is helpful that the court has discretion to act on its own.

An interesting article from The Probate Lawyer Blog – Farrah Fawcett’s estate, and ownership of a famous Andy Warhol painting of Fawcett, Click Here

NY Times article link, re killing medicaid the California way by reducing medical provider reimbursement rates.  Pursuant to the article medicaid serves 50 million poor and disabled Americans.
Click Here

Click the following link for a discussion about British Columbia Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence. The guide is timely to a change in legislation in British Columbia that when the new Wills, Estates and Succession Act becomes effective. Click Here

The following is a link to a short video summarizing what a California conservatorship is, when it can be granted by a court, and when it can be helpful, Click Here.

Portico Management Group, LLC v. Harrison (California Court of Appeal, Third District, Case No. C062060, December 28, 2011) reaffirming that a trust is not an entity that can be sued – instead, it is appropriate to sue the person who is the trustee of the trust – i.e., the party to the case should be named similar to the following manner: “(insert the trustee’s name) as Trustee of the (insert the name of the trust) Trust Dated . . . .”

Estate of Roger Kampen (California Court of Appeal, First Appellate District, Case Nos. A129849 and A130313, November 14, 2011, Pub. Order December 9, 2011).

The Court’s decision in Kampen is lengthy. It is a case that should be read if you are involved in issues relating to damages that can be recovered against an executor for breach of fiduciary duty, particularly in the context of damages that might be recoverable against an estate executor for significant delay in the distribution of estate assets following an order of distribution. The trial court did award damages against the executor including loss of compensation and the loss of value to the estate caused by the executor’s delay. However, the beneficiary appealed, contesting the trial Court’s manner of calculating damages, and also the trial Court’s denial of interest during the time of delay following the order of distribution. The beneficiary argued that the damages should have been larger and should have included some manner of calculation relating to the beneficiary’s lost claimed lost opportunity costs.

In summary, on appeal the Court affirmed the trial court’s manner of calculating damage caused by the executor’s delay, and held that interest did not accrue on the value of the estate following the order of distribution. The decision discusses many sub-issues pertaining to the calculation of damages in the context of an estate. For example, the Court held that an order of distribution is a final judgment that is in rem in nature, but it is not a money judgment; speculative damages are not recoverable; and the beneficiary of the estate “is not entitled to interest it could have earned on the cash in the estates. An executor is similar to a trustee in many respects but, unlike a strict trustee, an executor has no statutory duty to invest money belonging to the estate.” The Court also upheld the trial court’s partial holding against the beneficiary for laches relating to the beneficiary’s delay in enforcing its rights.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.

The following is a link to materials from my recent bank presentation discussing new California trust, estate, elder and fiduciary cases during the past year or so, Click Here.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.