ATTORNEY NEWSLETTER
Neighbor Allegedly Manipulated Elder’s Trust To Become Beneficiary
Court Awards Double Damages
Deceased Victim’s Niece Brought Trust Contest
Californians create trusts to avoid probate expenses and delays at their death and provide for management of their assets if they become incapacitated. Trusts are a good way to protect assets, but when a settlor suffers from cognitive impairment, a greedy caregiver, neighbor, “friend,” second spouse or boyfriend or girlfriend may use that diminished capacity to re-arrange the trust by amendments redirecting assets to themselves and away from the settlor’s family. They also may manipulate the ailing senior to name them as trustee so that they are in control of the assets even before the settlor’s death. These manipulations are forms of financial elder abuse, and the victims and their families have claims under the Elder Abuse Act for this kind of financial elder abuse against those directly abusing the elder and those assisting them (like the lawyers who draft the abusive amendments). Cal. Welf. & Inst. Code § 15610.30. Evans Law Firm, Inc. represents victims of any kind of financial elder abuse and their families in Contra Costa County and throughout the Bay Area and the State of California. We can be reached at (415)441-8669. Our toll-free number is 1-888-50EVANS (888-503-8267).
Trust Contest Recovery
In a recent disputed trust contest[1], a court awarded $1.1 million to the family of a deceased financial elder abuse victim. The case was brought against the neighbor of an elderly woman suffering from cognitive impairment. The neighbor allegedly manipulated her way to becoming the primary beneficiary of the decedent’s trust, unwinding years of estate planning favoring the decedent’s family. The decedent’s niece made a motion at the outset of trial to shift the burden of proof to the neighbor, requiring her to prove by clear and convincing evidence the trust amendment was not the product of undue influence. The Court granted the motion, putting the wrongdoer in the position of trying to prove a negative, and by a heightened standard.
The neighbor presented evidence but was unable to meet her burden. The court ordered judgment be entered in favor of the decedent’s niece for the value of the estate, double damages penalties for neighbor’s financial elder abuse, and finding that the trust amendment was not only the product of undue influence but also executed at a time when the decedent lacked testamentary capacity. The court also awarded attorneys’ fees and costs to the plaintiff, which will be added to the judgment.
Trust Contests And Financial Elder Abuse Cases
Once a settlor dies his or her trust becomes irrevocable. There is a very limited time period following the settlor’s death to challenge the trust. Cal. Probate Code § 16061.7 (within 120 days of the trustee’s notice to the heirs that a trust has become irrevocable). Because your time to challenge any trust arrangement that a caregiver or other financial predator has orchestrated is so short, you should contact a financial elder abuse/trust lawyer immediately upon receipt of any notice or preferably before if you suspect a problem.
Remedies include compelling the trustee to account for trust assets and to restore to the trust any assets wrongfully taken out of it. Cal. Probate Code §§ 850 et seq. and 17200 et seq. Economic damages and punitive damages are also available to the injured party. Cal. Probate Code § 16440. Trustee misconduct may also constitute financial elder abuse against senior settlors and plaintiffs can pursue the remedies available under the California Elder Abuse and Dependent Adult Civil Protection Act, Welf. & Inst. Code § 15600 et seq., including mandatory attorneys’ fees and costs and extra damages to the injured senior or heirs in certain circumstances. Cal. Welf. & Inst. Code § 15657.5.
Contact Us
Ingrid M. Evans can be reached at (415) 441-8669, or by email at info@evanslaw.com. Our toll-free number is 1-888-50EVANS (888-503-8267). Ingrid will pursue all remedies available to elder and dependent adult abuse victims and their families including the recovery of attorneys’ fees and costs for bringing suit in certain circumstances. Cal. Welf. & Inst. Code § 15657.
[1] Evans Law Firm, Inc. was not involved in the case in any way.
