Completed (mostly) a will contest and trust real property percentage trial on Friday – read more

I have been away from the blog for a while, preparing for a very contentious and time-consuming trial.

This past week I was in trial on a will contest action, and also on related but separate real property ownership and trust beneficiary percentage ownership claims. The witnesses and experts included my client who was the named beneficiary, the contestant(s), documents in which the decedent expressed her wishes including a police report and APS records in addition to other documents, forensic document examiners, forensic psychiatrists, and third party witnesses including a very spry 102 year old woman who was a friend of the decedent (the decedent executed the will at age 103, and passed away approximately 9 months later at age 104). Issues also involve the validity of a power of attorney that the decedent executed in June 2015 (she died one month later in July 2015), mental capacity, undue influence, elder abuse, trust and power of attorney accountings, costs and attorneys’ fees, and other issues.

As you may be aware, issues of mental capacity and undue influence are not the same for wills, powers of attorney, and trusts, variously including California Probate Code §§810, etc., and 6100.5, etc., and California Welfare and Institutions Code §15610.70, and various other statutes and case law.

The will contest was denied, and my client will receive what the decedent wished and intended.

So . . . I will be back on this blog and other networking, and also on my other blog http://auditcommitteeupdate.com.

Best to you, and thank you for following my blogs and posts. Dave Tate, San Francisco Bay Area and California.

 

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), http://californiaestatetrust.com