Man sentenced for roll in forged will, Click Here For Article.
In will and trust contest actions California law holds that the intent of the decedent should control where his/her assets go. How do you determine the decedent’s intent? Certainly from the pre-death actions of the decedent and from admissible documents that can be authenticated and that aren’t out-of-court hearsay, but what about the decedent’s pre-death statements? Keep in mind that California Evidence Code sections 1260 and 1261 are hearsay exceptions that can be useful tools to bring in decedent’s pre-death statements.
Sections 1260 and 1260 provide as follows:
1260.
(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:
(1) That the declarant has or has not made a will or established or amended a revocable trust.
(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.
(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.
1261.
(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.
Dave Tate, Esq. (San Francisco)
An interesting short article, click on the link. Is family wealth a curse? The author does a good job with the subject, but family wealth is an opportunity. The “curses” that the author discusses are more “manner of upbringing” or age, life experience or maturity related. Click Here For Article.
Dave Tate, Esq. (San Francisco)
A new Alzheimer’s study will focus on treatment, Click Here For Article.
The following is a link to JD Supra’s post from Cullen and Dykman about a new case, regarding e-discovery and social media – a good, brief summary reminder for litigation attorneys, particularly in trust, estate and elder cases where family dynamics and emotions can be at issue, and people sometimes talk or express themselves through social media Click Here.
Dave Tate, Esq. (San Francisco)
Limit on health insurance rates for older (over age 50) adults limited to 3 times the rates for younger adults under the Patient Protection and Affordable Care Act, Click Here for Article.
A good discussion and link from the National Center on Elder Abuse, discussing what is elder abuse, Click Here for article.
Dave Tate, Esq. (San Francisco)
Link to long-term insurance article, Click Here. Enjoy.
Dave Tate, Esq. (San Francisco)
The following is a link to an interesting article about the Will of George Washington (with attachments of the actual will), Click Here.
Dave Tate, Esq. (San Francisco)
Allen v. Stoddard (January 9, 2013, Court of Appeal of the State of California, Fourth Appellate District, Case No. G046460)
Note: you should consider the holding in Allen v. Stoddard to be limited to the facts in that case, you should read the holding in its entirety, and, of course, you should always file a complaint and initiate legal action before the expiration of any possible statute of limitation. Nevertheless, you might find the holding and reasoning in Allen v. Stoddard helpful if you are in a situation where a possible statute of limitation may have expired.
Allen filed a creditor claim in the Estate of Humpert, claiming that Humpert, with whom Allen had be in a stable, long-term committed relationship, had promised Allen that he “would be taken care of” should “anything happen” to Humpert. Humpert died intestate, and there was no evidence Allen and Humpert ever registered as domestic partners, or married during that brief period in 2008 when same-sex couples could marry. Allen filed the creditor’s claim against Humpert’s estate based on the “would be taken care of” promise made by Humpert. The next month on May 19, 2011 the estate sent a formal notice of rejection of Allen’s claim.
Allen filed his complaint exactly 91 days from May 19, 2011. Stoddard, as estate administrator, successfully demurred to the complaint based on it being untimely under section 9353, subdivision (a)(1). A judgment of dismissal ensued, and Allen timely filed this appeal.
On appeal the Court was confronted with the issue of whether Probate Code section 9353 irreconcilably conflicts with Code of Civil Procedure section 366.3. The Court concluded that they do conflict on the narrow point of how much time a claimant against an estate has to file suit based on a promise to make a distribution from the estate, such as a contract to make a will. Section 9353 gives claimants 90 days from rejection of the claim by the estate to file suit; section 366.3 gives them a year from decedent’s death to file suit. Under the longstanding rule of construction that newer and more specific statutes take precedence over older and more general statutes, the Court concluded it is section 366.3’s time limit that controls.
Probate, trust, estate, will, elder abuse, real property, power of attorney, conservatorship, Probate Court, and contentious administration related disputes, conflicts and litigation; and mediator and dispute resolution services. http://Californiaestatetrust.com. Note, I am posting future posts to http://tateattorney.com 