Buffington Law Firm’s Elder Abuse and Trust litigation attorneys have frequently dealt with cases of financial elder abuse involving undue influence exercised against a vulnerable senior or dependent adult, by a professional caregiver. Frequently these cases involve situations in which a vulnerable elder or disabled person is under the full-time care of a caregiver, and the caregiver begins systematically pressuring the victim into making the caregiver a major beneficiary of the victim’s estate. Not infrequently, the victim feels that he or she is very dependent upon the care and good will of the caregiver, and believes that he or she has no choice other than to accede to this pressure. We have seen cases where the victim is pressured into signing trust documents making the caregiver the sole beneficiary of the victim’s estate. Other cases have involved a victim placing the caregiver on title of the victim’s home in a form such that when the victim passes, the home (often worth millions of dollars) passes to the caregiver irrespective of the other provisions of the victim’s estate plan. Usually this happens quietly, and the victim’s other family members are unaware that this is going on. When the victim finally passes, the caregiver tries to present the victim’s family and loved ones with an accomplished fact. When this happens, the true heirs need legal assistance.
California Probate Code Section 21380 makes donative transfers (transfers of property either during life or through testamentary documents such as trusts or wills) presumptively void as the product of undue influence. Essentially what this means, is that absent compelling evidence to the contrary, transfers to caregivers (and certain other categories of persons) may be void. The statute provides, in relevant part:
a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:
(1) The person who drafted the instrument.
(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.
(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.
(4) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.
(5) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.
(6) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.
(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.
(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6) of subdivision (a), the presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.
[California Probate Code Section 21380 (emphasis added)].
Essentially, this statute places a heavy burden on a caregiver, when a transfer of this type is challenged by the victim’s loved ones, to prove with clear and convincing evidence (which is a higher standard than simple “preponderance of the evidence) that the transfer in question was not the product of fraud or undue influence. Thus, the burden of proof, which is usually upon a party challenging such a transfer, shifts to the caregiver to prove that the property transfer to the caregiver was truly what the victim wanted, free of coercion or fraud. If the caregiver fails at trial to meet this high burden, he or she “shall bear all costs … including reasonable attorney’s fees”. [Cal. Probate Code Section 21380(d)].
If you or a loved one has been the victim of undue influence or other issues affecting your or a loved one’s estate, Buffington Law Firm’s trust and elder law attorneys invite you to contact us for a Free Legal Consultation. All consultations are with an experienced trial attorney and are protected by attorney-client privilege. There is never any charge or obligation to you.
Roger J. Buffington