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Elder Abuse Trusts

Downey Brand LLP

No Such Thing as a Free Ride: Section 859 Awards Can Now Go To Whoever Does the Work

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Newcomers to probate litigation are frequently surprised by how differently things work in probate court, as opposed to your more straightforward civil courts. (And how do those newcomers know how civil courts work?  Law &...more

Winstead PC

The Baby-Boomer Generation & The Largest Succession of Wealth in History: The New Frontier in Asset Recovery - Presentation

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David F. Johnson participated in a panel presentation entitled “The Baby-Boomer Generation & The Largest Succession of Wealth in History: The New Frontier in Asset Recovery?” for the Offshore Alert Miami Conference on April...more

Downey Brand LLP

Trustees Beware: The Line Between Protected and Wasteful Litigation Is Thinner Than You Think

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This blog has devoted a lot of real estate to the use of anti-SLAPP motions in California trust and estate litigation. Though the courts’ treatment of such motions is varied and oftentimes unpredictable, Californians can...more

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Elder Abuse Restraining Orders May Prevent Estate Planning Changes

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Can a California court stop others from changing an elder’s estate plan?  Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust....more

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Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

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California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the...more

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Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?

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California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of...more

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Making Peace in Mediation – A Conversation with Daniel Spector

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Daniel Spector has litigated trust and estate cases in Northern California since the early 1990s. He is now focusing his practice on mediating trust and estate disputes across California, working with Judicate West. Dan is a...more

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Will California SB 315 Improve Revocable Transfer on Death Deeds?

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The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding probate and the expense of creating a trust. Revocable Transfer on Death Deeds, or RTODDs, have...more

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Is “Bad Faith” Needed for Double Damages Under Probate Code Section 859?

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A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under...more

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When Do California Trust and Estate Cases Have Preference in Trial Setting or Appeal?

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Getting a civil or probate case to trial in California can take a long time. The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed. While most California trust and...more

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Clear and Convincing Evidence Standard Continues to Apply in California Appeals

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Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard. In...more

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Guardian of the Galaxy – What is the Role of a Guardian Ad Litem in Trust and Estate Disputes?

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Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets. But many disputes, or at...more

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Elder Abuse Is Not a Trojan Horse – Bad Faith Must Be Shown for Double Damages Under Probate Code Section 859

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Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes...more

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California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

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Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A...more

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Free Rider No More — When Can a California Trust Beneficiary Shift Legal Fees to Other Beneficiaries?

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American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.” There are, of course, exceptions to this so-called “American Rule.”...more

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A Neuropsychologist’s Take on Mental Capacity Evaluation

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Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity,”...more

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Mental Capacity Standards in California Civil Litigation

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What mental capacity standards apply in California civil litigation? Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville. I’ll offer highlights here. Short...more

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Courts Should Read Elder Abuse Act Broadly to Stop Wrongdoers

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California’s Elder Abuse and Dependent Adult Civil Protection Act is elastic enough to encompass claims arising from sharp insurance sales practices, even when elders do not pay anything directly to the agents. So concluded...more

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