California Trustee and Beneficiary Responsibilities and Rights, a 7-Page Summary

Click on the following link for my 7-page paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 08012015

Dave Tate, Esq. (San Francisco/California),,

Description of some of my trust, estate, conservatorship and elder abuse cases

The following are some of the trust, estate, conservatorship and elder abuse cases in which I have been involved.

Trust administration dispute and trial:
Represented a trustee in a very contentious trust administration. Two nephews thought that the trustee was in some manner not administering the trust and the real property properly, hired a very aggressive attorney, and spent a lot on attorneys’ fees. After distributions the nephews sued the trustee for breach of fiduciary duty. After a one week trial the trustee prevailed.

Will contest trial:
A 16-day will contest trial about an at-home computer software prepared will that left everything to the long-time live-in friend who the decedent would not marry, and nothing, not even personal property and family heirlooms, to the children who everyone testified the decedent loved. The testimony presented included family members and family friends, and computer and handwriting forensic experts. The court held: nevertheless there was not enough evidence to overturn the will.

Breach of fiduciary duty trial:
Trustee/beneficiary obtained multiple real property appraisals and then sought to sell the real property to her son for the appraised value. The other trust beneficiary objected. At trial the court held that the trustee/beneficiary breached her fiduciary duty in wanting to sell the property to her son. Neither the trustee/beneficiary nor the other beneficiary were happy with the court’s decision – both got together and settled the entire matter more favorably to both.

Breach of fiduciary duty and elder abuse trial:
A trust beneficiary brought an action against his trustee mom to stop the contract and sale of a trust commercial building at a significantly below market price. Mom sought to sell the property to a “friend” and ex-business partner of dad. The siblings were split – (1) either stop the sale because the property was worth a lot more and mom was being taken advantage of by the “friend”, or (2) let mom do what she wants and what will make her happy. After a 1-week court trial including valuation experts the sale was invalidated.

Trust contest and alleged oral agreement dispute:
Son claimed dad orally told him years ago that he would have some rights to the residential home, but mom and dad’s trust said otherwise. Close to trial and after multiple mediations the son withdraws his claim.

Multiple real property partition trials where owners or beneficiaries could not get along.

Conservatorship and financial elder abuse of mom by two strangers:
A lonely, nice, financially comfortable elderly woman was befriended by two men, both of whom were brothers. Mom loved corvette cars. The two men convinced mom to buy herself a corvette (V-8 engine) and another corvette for them. Daughter caught wind of it – went in for conservatorship and restraining orders. After some convincing the men abandoned the car and did not return.

Board and care facility financial elder abuse by two strangers:
A lonely, nice man was befriended by a younger man and woman couple, who come into the facility and spend a lot of time with the man in his room. The family heard of it. Conservatorship and stay away restraining orders are granted. The facility is supposed to keep the couple out but the couple keeps coming back and getting back in and are having the man start buying them gifts. The police tell the couple to stop, but they continue. When the police then threatened to arrest the couple they stop.

Grandfather wants to leave his house to his grandson:
Grandson and his wife helped take care of Grandfather. Grandfather lived in an expensive neighborhood. Grandfather wants to leave his house to his Grandson. APS got involved over issues relating to whether grandfather had mental capacity, knew what he was doing, and whether he was being unduly influenced. After extensive investigation APS concludes that all is okay.

Union post-death of judgment debtor action to recover remaining judgment:
Union recovered a judgment against a prior officer for embezzlement. The judgment debtor then died before the judgment was paid back, and the debtor’s surviving spouse would not pay the remaining amounts due. Brought multiple action and recovered the debt due (petition for probate and creditor claim, complaint for recovery of the creditor claim amount, action against the trust and its beneficiaries, and separate action against the surviving spouse for community property debt).

Multiple probate and trust actions on behalf of a bank to recovery on an unsecured loan after the debtor dies.

Administrative law action to stop a nursing home to stop the home from discharging a wheelchair resident who was backing up too fast – the SNF wanted to discharge the resident instead of fixing the problem – the ALJ ruled in favor of the resident but had to be forced into that decision as he wasn’t interested in the resident’s rights

Dispute whether an elderly husband and wife could stay at home:
Husband and wife wanted to continue living together and to stay at home. They had at-home care. One or both had possible dementia. There were also allegations of possible self-abuse (inadequate taking care of themselves), and they both liked to have a cocktail late in the day as both husband and wife were ex-military. After a contentious battle both were allowed to remain together at their home.

Dispute whether to disconnect mom from life prolonging hospital machines, and overmedications:
Mom was in a hospital, kept alive by machines. She did not have an advance directive. The siblings were split about whether to keep mom connected to the machines and whether she would have wanted to live that way. Mom could only blink her eyes. Experts came in on medical issues. The judge was asked to decide mom’s wishes. Eventually mom was disconnected. As it turned out, after mom was disconnected, the issue was improper and overmedication and how the medications were interacting – mom did not die, the medications were fixed – she lived a health, ambulatory life for 5 more years and died a natural death.

Nursing home drop and elder abuse:
Dad was a large man, and was prone to striking out when he was unsure what people were doing with him. The nursing home put a red sign above his bed stating that anytime he was moved from or to his bed (he had to be moved using a hoyer lift and was moved from his bed to a chair and back daily) there must be three certified nursing assistants present. Dad was moved using the hoyer lift with only two CNAs present. The hoyer lift tipped, dad was dropped, hit his head and subsequently died. The SNF blamed the CNAs. Testimony by the staff ultimately evidenced that there was inadequate staffing and that there never were enough CNAs available to have three people present.

Nursing home restraining jacket and elder abuse:
Nursing home CNA put dad in a restraining jacket and caused bad bruising to dad’s back and front torso so that the worker could get off work on time or early so to go see his girlfriend that night as it was Valentine’s Day.

Nursing home physical abuse of female resident:
A nursing home resident soiled herself. The male CNA was unhappy that he had to wash the resident – the CNA was rough with the resident and physically hurt and bruised her as he washed her in the shower.

Action against trustee for failure to diversify investments:
The trust terms allowed the trustee to invest essentially all of the assets in a stevedore company. The law firm that prepared the trust was also the successor trustee, and the stevedore company was also a client of the law firm. The value of the stevedore company was declining significantly year after year over a long period of time. A beneficiary brought suit against the trustee for damages.

Multiple other actions for or against trustees for accountings, and breach of fiduciary duties including investment breaches.

New California Case – An Unambiguous Will With A Mistake Can Be Reformed With Clear And Convincing Evidence – Estate of Duke

In re the Estate of Irving Duke
California Supreme Court, Case No: S199435, July 27, 2015

In Estate of Irving Duke the California Supreme Court has held that an unambiguous will with a mistake may be reformed if (1) clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and (2) clear and convincing evidence also establishes the testator’s actual specific intent at the time the will was drafted.

On the one hand, Duke is a good decision as cases have already held that the intent of the testator should prevail, which is a position with which I agree. On the other hand, the Court jumps through some hoops which could result in different standards or criteria for wills compared to trusts, and different standards or criteria for remedying mistakes compared to ambiguities. See, for example, the quotes below from the Court’s decision. The fact is that after over a century of will and trust case law, in addition to old, revised and new California Probate Code statutes, we continue to have in probate law a large body of legal authorities that variously apply differently in different situations and that can contradict. See, for example, my prior blog posts discussing undue influence case law and how the standards are or might be different in the circumstance of a will (or at least a “simple” will) compared to a trust.

The following are some of the interesting quotes from the Court in Estate of Duke.

“In cases in which clear and convincing evidence establishes both a mistake in the drafting of the will and the testator’s actual and specific intent at the time the will was drafted, it is plain that denying reformation would defeat the testator’s intent and result in unjust enrichment of unintended beneficiaries. Given that the paramount concern in construing a will is to determine the subjective intent of the testator ( Estate of Russell, supra, 69 Cal.2d at p. 205; 4 Page on Wills (Bowe-Parker rev. 2004) § 30.1, p. 2), only significant countervailing considerations can justify a rule categorically denying reformation.”

“Fourth, the Radins assert that allowing reformation will result in a significant increase in probate litigation and expenses. Claimants have long been entitled, however, to present extrinsic evidence to establish that a will is ambiguous despite the fact that it appears to be unambiguous. ( Estate of Russell, supra, 69 Cal.2d at pp. 206-213.) Therefore, probate courts already receive extrinsic evidence of testator intent from claimants attempting to reform a will through the doctrine of ambiguity. (Cf. Buss v. Superior Court (1997) 16 Cal.4th 35, 57 [in rejecting the contention that requiring only a preponderance of the evidence to establish an insurer’s right to reimbursement will open the floodgates of litigation, the court noted that “the ‘floodgates’ have been open for quite some time”].) The task of deciding whether the evidence establishes by clear and convincing evidence that a mistake was made in the drafting of the will is a relatively small additional burden, because the court is already evaluating the evidence’s probative value to determine the existence of an ambiguity. FN:13 To the extent additional claims are made that are based on a theory of mistake rather than a theory of ambiguity, the heightened evidentiary standard will help the probate court to filter out weak claims. Finally, fear of additional judicial burdens is not an adequate reason to deny relief that would serve the paramount purpose of distributing property in accordance with the testator’s intent. (See Buss, at p. 58 [acknowledging that the future might bring more claims for reimbursement, “[b]ut the possible invocation of this right — or any other — is not a sufficient basis for its abrogation or disapproval”]; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171 [rejecting a proposed limit on the circumstances in which negligent infliction of emotional distress may be established, despite claim of ” ‘infinite liability’ “].)”

“Fifth, the Radins discount justifications for allowing reformation in appropriate circumstances. They assert that Probate Code section 6110, subdivision (c)(2), which allows the probate of a will that was not executed in compliance with statutory attestation requirements if clear and convincing evidence establishes that the testator intended the writing to be a will, was not intended to lessen required formalities. Although section 6110 does not reduce the formalities of attestation, it reflects a judgment that the formalities should not be allowed to defeat the testator’s intent when clear and convincing evidence satisfies the evidentiary concerns underlying the formalities of the statute of wills.”

Dave Tate, Esq. (San Francisco / California)

New California Case – the Probate Court Follows the Code of Civil Procedure Unless the Probate Code Provides Otherwise

Katzenstein v. Chabad of Poway, Court of Appeal of the State of California, Fourth Appellate District, No. D066340, filed June 15, 2015

In a rather harsh new case the California Court of Appeal reminds us that the Probate Court is a division of the Superior Court and that procedures in the Probate Court follow the Code of Civil Procedure unless the Probate Code provides otherwise.

In relevant part, Katzenstein in her capacity as Trustee filed a Petition in Probate Court following the death of Robert Feinberg who was the cosettlor and former cotrustee of the Trust and the named insured in two life insurance policies.

In the Petition, Trustee sought: (1) a determination that the Trust is the beneficiary of, and therefore entitled to the proceeds from, one of the insurance policies; and (2) damages against Chabad of Poway for interfering with the payment of that policy’s benefits to the Trust.

Chabad responded to the Petition by filing a document entitled “Claimant’s Objection and Counter Claim [sic] to Petition filed by Trustee to Determine Ownership of Life Insurance Policy Proceeds”.

In an unsigned minute order following summary judgment proceedings initiated by Trustee, the Superior Court sua sponte struck Chabad’s Objection and Counterclaim on the basis that the Code of Civil Procedure precludes a party from seeking affirmative relief in an answer.

Chabad appealed. However, because an unsigned minute order is not an appealable order under either the Code of Civil Procedure or the Probate Code, the Court of Appeal concluded that it lacked jurisdiction and therefore dismissed Chabad’s appeal.

I refer to the decision at the Superior Court level as being harsh because it would have been appropriate for the Superior Court to have allowed the Objection, or to have allowed amendment of the pleading because clearly the Objection and Counterclaim could have been split into two separate documents.

Dave Tate, Esq. (San Francisco / California)

Elder and Dependent Adult Abuse and My PowerPoint Presentation Slides

This blog post includes a video about elder and dependent adult abuse, and below the video you will find a link to my PowerPoint slides from a recent elder and dependent adult presentation for an attorney bar association section. Please pass this blog post to everyone who would be interested in these materials. Thank you. Dave Tate, Esq. (San Francisco and California).

Click on the following link for the PowerPoint slides from my elder and dependent adult abuse presentation, ELDER AND DEPENDENT ADULT ABUSE AND PROTECTION PRESENTATION SLIDES

Funeral taxes: California takes its cut from the dead – taxing “memory” DVDs

California Board of Equalization proposes to tax death or “memory DVDs” 8.25%, for the discussion click on the following link, Click Here. Enjoy. Dave Tate, Esq. (San Francisco/California) My other blog, director, officer, audit committee, board, risk, governance and compliance,

Alzheimer’s Cause Might Be Tau Protein – But At Law The Issues Are Mental Capacity, Natural Wishes, Fraud and Undue Influence

The following is an article about a new Mayo Clinic study, that the primary cause of Alzheimer’s might not be what has generally been thought:

“Amyloid – a sticky, toxic protein found in the brains of Alzheimer’s patients — has been the focus of research and diagnosis for decades. But a new Mayo Clinic study published in the journal Brain shows that another toxic protein, called tau, may be a bigger culprit in cognitive decline and Alzheimer’s over the lifetime of the disease.”

Click on the following link for the article: Click Here.

Many of my cases involve cognitive impairment or decline, whether it be diagnosed or called Alzheimer’s, or dementia, or traumatic brain injury, or lack of mental capacity, or cognitive impairment, or otherwise.

In conservatorships the issue isn’t the diagnosis, but whether the prospective conservatee has the ability to take care of and understand financial and/or daily living tasks and to resist fraud and undue influence?

And in will and trust contests or disputes, the issue is whether the decedent understood his or her assets and the effect of the provisions in the will or trust, and whether the will or trust provisions are what the decedent would have naturally wanted if the decedent had the mental capacity to understand his or her actions and the will or trust provisions, and to resist fraud and undue influence?  One additional comment: there is case law that you might not need to wait until after someone dies to contest or seek to invalidate a will or trust – this is an area of law that is developing and that is a positive development.

Dave Tate (San Francisco and California),