Dementia and how to care for the person who has dementia divides many families. Click on the following link for a good discussion about family dynamics and disagreements. Estate planning documents can help avoid some of the issues – such as power of attorney, health care directive, living will, trust, and other documents. Still disagreements and contests over who will be the decision maker and what care will be provided will persist. I’m reminded of a sibling family dispute case that I was involved in over Mom’s care, her diagnosis and prognosis, whether or not Mom could communicate by blinking her eyes, Mom’s wishes for her quality of life and care, and whether Mom would want to be or should be disconnected from the hospital machine support. Click on the following link for the NBC article, CLICK HERE
California has a series of statutes that can be useful tools to invalidate a will or trust in specific circumstances. Broadly, the statutes are California Probate Code Sections 21380-21392 for wills and trusts that become irrevocable on or after January 1, 2011, and Sections 21350-21356 for wills and trusts that become irrevocable before January 1, 2011. Common law protections also still exist for undue influence, fraud, mutual wills, vague and ambiguous provisions, the new claim for intentional interference with expected inheritance, and other situations of wrongdoing.
Before we continue, I need to caution you with a warning and disclaimer. You will need to evaluate the statutory protections to determine if they apply in your circumstance. You also must evaluate whether any action that you might take could trigger a no contest clause which could cause you to be disinherited. These California statutory protections also do not apply in a number of circumstances which are listed in the statutes, and some of which are discussed below. This discussion is only a summary of complicated topics, and does not provide legal advice, or advice for your particular situation, and you need to consult with an attorney about your situation.
Under California’s statutory protections, in appropriate circumstances, a will or trust is presumed to have been the product of undue influence or fraud if it makes a transfer (1) to a person who drafted the instrument (drafted means came up with the wording), (2) to a person who is in a fiduciary relationship with the transferor and who transcribed the instrument or caused it to be transcribed (transcribed means typed or prepared the instrument), or (3) to a person who is a care custodian of the transferor and the transferor is a dependent adult. The presumption of undue influence or fraud can also apply if the transfer is to a person who stands in a particular relationship with the person who drafted or transcribed the instrument, or who is a care giver to the transferor.
The presumption of undue influence or fraud is a presumption that shifts the burden of proof to the transferee who then has to prove by clear and convincing evidence that the transfer is not the produce of fraud or undue influence. But the presumption is also absolute with respect to a transfer to a person who drafted the will or trust, or if the transfer is to a person who stands in a particular relationship with the person who drafted the will or trust. If the transfer fails, the transferor will be treated as having died before the transferee, without wife, domestic partner or issue such as children.
A transferee who is disinherited by the statutes also is responsible for paying attorneys’ fees and costs.
Now, as I mentioned before, you do need to consider and consult an attorney about things such as possible no contest clauses that could operate to disinherit you, and that there are statutory exceptions to the protections. You need to consider that Section 21380 (and similarly, Section 21350) does not apply in a number of circumstances including any of the following: a donative transfer to a person who is related by blood or affinity within the fourth degree to the transferor or is the cohabitant of the transferor, or an instrument that is drafted or transcribed by a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor, or an instrument that is approved by the Court pursuant to California Probate Code Section 2580 after full disclosure of the relationships of the persons involved, or a donative transfer to a public entity that qualifies for an exemption from taxation under Section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust holding the transferred property for the entity, or a donative transfer of property valued at five thousand dollars ($5,000) or less, if the total value of the transferor’s estate equals or exceeds the amount stated in Section 13100, or an instrument executed outside of California by a transferor who was not a resident of California when the instrument was executed. The term cohabitant also has a statutory definition. It doesn’t mean someone who merely lives with the transferor. The term cohabitant is more akin to acting or holding out as husband and wife including the sharing of income, expenses and assets. Section 21380 also does not apply pursuant to Section 21384 if the instrument is reviewed by an independent attorney who counsels the transferor, out of the presence of any heir or proposed beneficiary, about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor’s heirs and on any beneficiary of a prior donative instrument, attempts to determine if the intended transfer is the result of fraud or undue influence, and signs and delivers to the transferor an original certificate of independent review.
Will, trust and elder abuse cases are complicated. The person who is challenging the will or trust has the initial burden of proof. But in some circumstances, with a full understanding of the legal arguments and tools that might be available, it is possible to level the playing field or completely switch the burden of proof.