By Roger J. Buffington, Esq.
Buffington Law Firm’s trust litigation attorneys often handle cases involving claims where a party alleges that someone committed undue influence against another person to cause that person to alter his or her living trust to favor the influencer. California Welfare & Institutions Code Section 15610.70 provides that undue influence is the excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. [Welf. & Inst. Code § 15610.70]. For example, one child may unduly influence an elderly parent to amend his or her living trust to leave the parent’s house to that child, when the actual desire of the parent is for all five of the parent’s children to have equal shares of the property. An important legal question arises concerning whether influencing an elderly person to alter their estate plan by means of undue influence constitutes financial elder abuse, as well as grounds for nullification of the trust amendment or provision that was obtained by means of undue influence.
It is well-settled in California law that if a testamentary change is obtained by means of undue influence, the provision (e.g. an amendment to a trust) can be nullified and set aside by a court. [E.g.David v. Hermann (2005) 29 Cal. App. 4th 672, 689 (trust set aside on grounds of undue influence)]. Normally in such circumstance, in California probate actions that would be the only remedy that the petitioner (the person challenging the amendment resulting from undue influence) would achieve. The petitioner would not have other remedies such as court costs or attorney’s fees, from the losing party. However, recent Court of Appeal cases indicate that if a person unduly influences a California elder to change his or her estate plan, that this would constitute a deprivation of a property right. Controlling case law has long established that financial elder abuse applies in situations involving the right “to dispose of the property by sale or gift.” (Bounds v. Superior Ct. (2014) 229 Cal. App. 4th 468, 479]. In White v. Wear [(2022) 76 Cal. App. 5th 24] the Court of Appeal upheld granting an elder abuse restraining order under Welfare and Institutions Code Section 15657.03 and concludes that the procurement of an amendment to a trust modifying the dispositive provisions constituted financial elder abuse against the trustmaker. It based this finding on the language defining financial elder abuse as “the taking of ‘any property right, including by means of … testamentary bequest …'” [White v. Wear, supra at 76 Cal. App. 5th at 41-42; see also Welf. & Inst. Code Section 15610.30(3)(c)]. Similarly, in Levin v. Winston Levin (2019) 39 Cal. App. 5th 1025] the Court of Appeal made a similar determination although in that case the Petitioner in the underlying matter was not asserting financial elder abuse by the time the matter went to trial. [Id.]. This authority seems to hold that depriving an elder (a California resident over age 65) of his or her right to dispose of property via a trust without interference by undue influence, may constitute financial elder abuse.
These represent important legal precedents because they mean that exercising undue influence over a California elder to change their estate plan can implicate consequences beyond the risk of a court reversing the change. The remedies for financial elder abuse against a losing respondent or defendant are severe. These remedies include compensatory damages, reasonable attorney’s fees and costs, and, in certain cases, punitive damages. [Cal. Welf. &I Inst. Code Sections 15657.5, 1565i7.01, Cal. Prob. Code Section 859]. Under Probate Code Section 859, double damages may apply. Because of the severity of losing a financial elder abuse action, this possibility makes the exercise of undue influence much more hazardous to the perpetrator than was the case before these case holdings. If subsequent case law substantiates that obtaining changes to an elder’s estate bequests by means of undue influence in fact constitutes financial elder abuse, this will act as a more powerful deterrent against such conduct. Such remedies will become an important tool in this increasingly prevalent area of trust litigation.
If you are involved in an actual or potential trust dispute we invite you to contact us for a free legal consultation. All consultations are entirely confidential and take place with an actual, experienced trust litigation attorney. There is never any obligation on your part. Call us today!