When litigating a Will or Trust dispute, we often run up against a lack of witnesses as to undue influence being committed on an elder who dies after doing some strange things with his or her estate. Often no witness saw anyone committing undue influence or any other elder abuse on the deceased elder. Even close family members don’t know. At least with elder women many go to a certain hairdresser for life. Come hell or high water, they get to the hairdresser no matter what. Whether they have to come in using a walker or in a wheelchair they get there. They may be very sick, almost dead, but they make it to the hairdresser. They often have a regular appointment and that’s one thing they will do, get there. When I consult with an elder’s hairdresser, I usually get a wealth of information about that elder, their activities, their friends, persons that may or may not have abused them, etc. In one case we had an elder lady who was an alcoholic who changed her Will leaving everything she had which was a lot to her new younger husband. She had been an alcoholic for some years but the doctors had told her to dry up the drinking or die and for quite some time she did successfully do so. She then died unexpectedly and the family suspected that the husband had been able to get her to start drinking again which lead to her demise. The lady’s hairdresser was located across the street from the apartment house that the elder lady owned and lived in the penthouse with her husband. As indicated, the doctors told her that if she didn’t quit her drinking, she would die and as indicated, she was making a success of quitting. We decided to question the hairdresser about the elder, her habits, and so forth. The hairdresser indicated that the elder had been her client for many years and would always come in every other Wednesday without an appointment at 2:00 p.m. for her regular appointment. The hairdresser indicated in the past few months she was wheeled in in her wheelchair by her husband but as the hairdresser indicated, she was definitely “off the wagon” and in an alcoholic state. The hairdresser indicated that the elder told her that she had tried to quit but her husband kept giving her vodka and she couldn’t resist. Our private eye checked the penthouse’s garbage over a period of a month or so and regularly every day there would appear empty half gallon bottles of vodka which was the elder’s drink of choice. The husband did not drink. Shortly after her last visit with her hairdresser she died. We checked with the elder’s doctor and he indicated that if she in fact had continued drinking after he had met with her several months before and cautioned her against drinking, that she would die and he was very definite in his opinion that being continually fed the vodka by her husband was the thing that tipped her off balance and caused her death. She was only 70 years old but the years of drinking had taken its toll. We then filed a petition to cancel out the will in favor of the husband on the basis of what we alleged to be undue influence and also the fact that he had supplied her with the alcohol that caused her death which under the code (Prob. Code §250(a)) disallowed him from inheriting. You cause someone’s death you don’t inherit. The end result was that he renounced taking under her Will allowing our clients to take their rightful properties as the alternate beneficiaries.
Because of the court budget crisis which has pushed the courts to cut back important services to attorneys and the public in general, many courts including Probate Court have adopted procedures to help alleviate court congestion by having qualified attorneys serve as pro tem judges and discovery facilitators without pay or “pro-tem”. These are good programs. Our firm participates in these programs. It is hoped that attorneys will not attempt to “game” the system and abuse these services in an attempt to delay a case from moving forward in the system. An example of this would be to object to discovery such as a subpoena knowing that the issues would not be handled by the judge but referred to a pro-bono attorney to handle initially before it gets to a judge if needed and simply cause delay.
The average survival rate is eight years after being diagnosed with Alzheimer’s – some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.
Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home – often receiving care from family members.
If the diagnosis is Alzheimer’s, call elder law attorney for help.
Recently one of our clients prevailed in a Will contest and as a result the Will she fought for was decided by the court to be the one to be probated. One of the assets in the probate estate was a piece of real estate in an impoverished part of Contra Costa County worth very little. We were able to find a realtor who was quite sharp and this realtor found a buyer for the property at a price we thought was more than reasonable. There were only two beneficiaries of the estate and of course, our client the executor felt that the price was right, but the other beneficiary who had lost the Will contest objected, indicating that he felt that the price was too low. Because of his objections, we had to go to get court approval for the sale which was already to close and in escrow and obviously it was inconvenient to postpone the sale to get court approval. Were we wrong. Real estate is so hot now in the Bay Area that even junk real estate value has exploded. At the sale the original purchaser finally prevailed but he had to ward off 9 overbids in Probate Department 14, Contra Costa County Superior Court. The Judge was like an auctioneer on that particular morning. The final sales value was almost 30% higher than the original sales figure. The extra work was more than compensated for and everybody went home happy, which is nice for a change.
One of the most dangerous practices of people who are doing a Will or trust is to name their oldest child automatically as the trustee or executor of their trust or Will upon their demise. Time after time that particular person named just because they are the oldest turns out to be probably the weakest pick of the litter. When you are advising a client on the subject, you must explore the background of each child and try to get the parent to make the best selection not just the one that is the norm which is to name the eldest child. A large percentage of Will and trust litigation is based upon the fact that people do not select the person on merit but simply on “first born”. Even if they only have one child this person’s ability should be scrutinized as well. In fact, no matter how many children they have if none of them can meet what you think are proper criteria for the job, let them know. In fact, one of our most recent cases the youngest son who was a medical doctor and was fully able to handle his deceased mother’s affairs wasn’t able to do it because his older brother had been appointed trustee of the trust. Not until the older brother who was essentially unemployed, uneducated, etc., and who completely messed up his mother’s affairs were we able to get the older son in as substitute trustee for his brother who was eliminated by the court.