California’s Financial Elder Abuse Act: A Case for Bringing a Financial Elder Abuse Lawsuit in Bay Area Trust and Will Contests

Trust and Will Contests in Probate CourtFinancial Elder Abuse

Traditionally Trust and Will beneficiaries who have been written out of their parents’, family members’, or friends’ Trust or Will were limited to filing a Trust Contest or a Will Contest in a Bay Area Probate Court of the county where the parent, family member, or friend died. For example, if the parent or family member died in San Mateo County, a Will contest, and more than likely a Trust contest, would be filed in San Mateo County Probate Court. In addition to being limited to the Probate Court, the basis for bringing the Trust or Will contest was generally limited to claims for lack of capacity and undue influence.

Bringing Financial Elder Abuse Claims in Trust and Will Contest Lawsuits

While lack of capacity and undue influence claims work when appropriate facts are present, I think it is much better for beneficiaries challenging a Will or Trust to file a lawsuit in the civil court (not Probate court) for financial elder abuse.

Advantages of Bringing Financial Elder Abuse Claims

There are several reasons for bringing a financial elder abuse lawsuit in the civil court:

• First, you get a jury trial in civil court for the financial elder abuse claim, whereas if you stick to plain vanilla lack of capacity and undue influence claims you must bring them in the Probate court and you don’t get a jury trial—instead in Probate court a single judge hears and decides the case based on the evidence.

• Second, the enhanced damages allowed in a financial elder abuse claim include the parents’, family members’, or friends’ pain and suffering and mandatory attorneys’ fees. These enhanced damages are not allowed in a Probate Court setting involving claims for lack of capacity and undue influence.

• Third, the financial elder abuse act allows that claim to be based on “undue influence”—the same “undue influence” claim that one brings in the Probate Court. And the elder abuse act has a great definition for what constitutes undue influence.

I really like the jury trial option over the bench trial in Trust and Will matters where financial elder abuse is present. Not that I don’t like Probate judges, but a Probate judge is a single individual who will hear all the evidence and make a decision. There is no other person who hears the same evidence and is part of the decision in a bench trial. But in a jury trial you get 12 members of the community who use their collective common sense in making a decision after hearing the evidence for financial elder abuse. In addition, California law only requires 9 of 12 of the jurors to agree to get a favorable verdict. With a jury trial you are leaving the decision to a group of people (up to 12), rather than one person.

The enhanced damages under the elder abuse act are good as well. While it is unlikely a court would award all of your attorneys’ fees if you were successful in your elder abuse claim, the threat of the bad acting person having to pay your expensive attorneys’ fees looms over them during the entire lawsuit. In contrast, if you only brought a claim in Probate court, the bad acting person would not be responsible for attorneys’ fees if you were to win.

Finally, the undue influence claim in a financial elder abuse case is nearly identical to the undue influence claim you would bring in Probate court. And the definition of undue influence under the Elder Abuse Act is outstanding. Under the act, “undue influence” is defined as the excessive persuasion that causes a parent or family member to act or refrain from acting due to a bad acting person overcoming the free will of the parent or family member—all of which results in an unfair result. To determine whether a bad acting person exercised undue influence over a parent, family member, or friend, the law requires four baskets of facts to be considered. Those four baskets are:

• The vulnerability of the victim.

• The bad acting person’s apparent authority.

• The actions or tactics used by the bad acting person.

• The equity of the result.

I’ll be posting more in the near future on the four baskets of facts and what you need to successfully prove a claim for undue influence under California law based on a lawsuit for financial elder abuse.

To Summarize

To summarize why it’s important to bring a financial elder abuse claim when a California Trust or Will beneficiary has been taken out of the Trust or Will by a bad acting person:

• The claim for Financial Elder Abuse allows for a jury trial—whereas claims for plain vanilla undue influence and lack of capacity are limited to the Probate Court and do not allow a jury trial.

• The claim for Financial Elder Abuse allows for enhanced damage claims, including the victim’s pain and suffering, as well as your attorneys’ fees. These damage claims are not available in Probate court.

• The claim for Financial Elder Abuse can be made on the same “undue influence” claim that you would make in Probate court. And, the legal definition for “undue influence” under the financial elder abuse claim is outstanding.