Trust and Probate Challenges: Minimizing and Litigating...
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Trust and Probate Challenges: Minimizing and Litigating Claims of Undue Influence, Fraud, Capacity and Mistakes Overcoming Evidentiary Hurdles with Medical Records, Documentation, Experts and Other Witnesses
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THURSDAY, JANUARY 16, 2014
Presenting a live 90-minute webinar with interactive Q&A
James A. Bush, Of Counsel, Van Dyke & Associates, San Diego
Anthony R. La Ratta, Partner, Archer & Greiner, Haddonfield, N.J.
J. Brian Thomas, Attorney, Burdette & Rice, Dallas
TRUST AND PROBATE CHALLENGES:
MINIMIZING AND LITIGATING CLAIMS OF
UNDUE INFLUENCE, FRAUD,
CAPACITY, AND MISTAKES
Part One: Substantive Bases for Will and Trust Document Litigation1
James A. Bush, Esq.
Van Dyke & Associates, APLC
501 W. Broadway, Suite 1600
San Diego, CA 92101-8474
(619) 344-0977
1 The law on this subject tends to be based on common law principles that are observed in
most states rather than laws unique to a particular state. Because the presenter is based in
California, and for convenience, citations from California law usually are used without an
attempt to cite consonant authorities from other states.
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I. Bases to judicially challenge a testamentary document include:
A. Lack of Capacity
B. Undue Influence
C. Fraud
D. Mistake
II. Lack of Capacity
A. Generally, persons over the age of majority and with legal capacity may
dispose of their property as they wish without regard to the desires,
expectations, or opinions of anyone else as long as the terms and conditions of
distribution are not prohibited by law or public policy. Estate of Markham, 46
Cal. App. 2d 307, 314, 115 P.2d 866, 869-70 (1941).
B. A person over the age of majority is presumed to have capacity to execute a
will or trust, and anyone challenging this presumption has the burden of
proving otherwise. Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr.
225, 229 (1986).
C. Capacity is determined as of the date that the relevant document is executed.
See, Andersen v. Hunt, 196 Cal. App. 4th
722, 727, 126 Cal. Rptr. 3d 736, 739
(2011); Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr. 225, 229
(1986).
D. Although capacity is determined as of the date the relevant document is
executed, proof can be offered of incompetency at earlier or later dates. Estate
of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr. 225, 229 (1986).
E. Generally, transferors have testamentary capacity when they can understand
the nature of the act they are doing; they understand and recall the nature and
situation of their property; and they know, and understand their relationship to,
the natural objects of their bounty and the persons affected by the relevant
document. Andersen v. Hunt, 196 Cal. App. 4th
722, 727, 126 Cal. Rptr. 3d
736, 739 (2011); Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr.
225, 229 (1986).
1. California embodies such capacity in Cal. Probate Code § 6100.5(a)(1).
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F. Transferors also lack testamentary capacity where they have such broad
insanity as to constitute mental incompetency generally or have some mental
disorder, hallucination, or delusion that causes them to distribute their property
in a way that, but for the disorder, hallucination, or delusion, they would not
have done. Estate of Perkins, 195 Cal. 699, 703-04, 235 P. 45, 47 (1925).
1. See Cal. Probate Code § 6100.5(a)(2).
2. Cal. Probate Code §§ 810(c) and 811(a) provide that a determination
that a person lacks capacity should be tied to evidence of at least one of
certain enumerated deficits in mental function and a correlation between
that deficit and the decision or act in question.
G. That a person is the subject of a guardianship or conservatorship does not
conclusively establish that such person lacks testamentary capacity (although it
may be some evidence of a lack of capacity), especially where there is
evidence that the person’s mental condition has improved since the
appointment of a guardian or conservator. Estate of Mann, 184 Cal. App. 3d
593, 604-05, 229 Cal. Rptr. 225, 230-31 (1986).
H. The capacity required to make an irrevocable trust, rather than a revocable trust
or a will (which is always revocable until the testator dies) may be more
stringent. “A person lacking capacity to make an ordinary transfer of property
has no capacity to create an inter vivos trust. (Rest.2d Trusts, §§ 19, 333 (see
comment f, p. 151); 3 Scott on Trusts (2d ed.) § 333.2, p. 2425; Bogert on
Trusts (2d ed.) § 997, p. 450 et seq.).” Walton v. Bank of California, N.A., 218
Cal. App. 2d 527, 541, 32 Cal. Rptr. 856, 865 (1963).
I. If testamentary incapacity has been determined at any particular point in time
due to senile dementia, there is a strong inference that such incapacity
continued thereafter because such dementia is continuous and becomes
progressively worse. Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal.
Rptr. 225, 229 (1986).
J. But if a transferor has a mental disorder during which he or she has lucid
periods (including early stages of dementia), “it is presumed that his [or her]
will has been made during a time of lucidity. . . . Thus, a finding of
testamentary incapacity can be supported only if the presumption of execution
during a lucid period is overcome.” Estate of Mann, 184 Cal. App. 3d 593,
604, 229 Cal. Rptr. 225, 230 (1986).
K. Other common circumstances that may bear on questions of incapacity but
which do not alone conclusively establish incapacity are as follows:
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1. “It is well established that ‘old age or forgetfulness, eccentricities or
mental feebleness or confusion at various times of a party making a will
are not enough in themselves to warrant a holding that the testator
lacked testamentary capacity.’” Andersen v. Hunt, 196 Cal. App. 4th
722, 727, 126 Cal. Rptr. 3d 736, 739 (2011) (quoting Estate of Wynne
239 Cal. App. 2d 369, 374, 48 Cal. Rptr. 656 (1966)).
a. But an irrational belief that has not even a semblance of facts to
support it may be sufficient to establish incapacity where the
irrational belief affected the provisions of the decedent’s will.
Estate of Mickelson, 37 Cal. App. 2d 450, 454-55, 99 P.2d 687,
689 (1940) (where unsubstantiated delusion was that testator’s
wife had been unfaithful and their child was born out of
wedlock).
2. Addiction to, or heavy use of, intoxicants alone is not enough to
establish incapacity. Estate of Garvey, 38 Cal. App. 2d 449, 456-57,
101 P.2d 551, 554-55 (1940).
3. That the decedent committed suicide does not alone destroy
testamentary capacity, even where the decedent’s will unquestionably
was written in contemplation of suicide. Estate of Rich, 79 Cal. App. 2d
22, 30, 179 P.2d 373, 378 (1947).
L. The terms of the testamentary document itself may be considered in
determining whether there was incapacity. “[W]here a man wills all or
most all his property away from his wife or children with whom he has
lived on apparently friendly terms, that fact has weight in determining the
mental condition of the testator. And if a man has lived in apparently the
most affectionate relations with his family, and leaves a will in which his
property is given to others, and no reason is suggested or explanation made
why they are thus disinherited, . . . ‘this circumstance could certainly tend
to show delusion or alienation of reason at the time of the testamentary
act.’” Estate of Martin, 170 Cal. 657, 663-64, 151 P. 138, 141 (1915)
(citation omitted).
M. Generally, a finding of incapacity invalidates the entire testamentary
document. If the transferor lacked capacity to make one part of the relevant
document, such incapacity presumably would apply to the entire document.
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III. Undue Influence
A. Undue influence is a sufficient ground to set aside a trust or will where
influence used on the transferor directly procures the challenged document and
such influence “amounts to coercion destroying free agency on the part of the
testator. . . . There must be proof of ‘a pressure which overpowered the mind
and bore down the volition of the testator at the very time the will was made.”
Estate of Mann, 184 Cal. App. 3d 593, 606, 229 Cal. Rptr. 225, 231 (1986).
1. To set aside a testamentary document on this ground, it is not enough
that a transferee exercised influence on the transferor. Anyone may
solicit a distribution from a transferor. To invalidate the document, the
influence must be undue, i.e., it must include some conduct that causes
the transferor to make a disposition of property different from that
which such person would have made of his or her own free will. Estate
of Baker, 131 Cal. App. 3d 471, 480, 182 Cal. Rptr. 550, 556 (1982).
2. Neither influence generally (no matter how strong) nor opportunity and
a motive to influence is sufficient to support a claim of undue influence.
It must be shown that influence was actually used to bring about the
challenged transfer in favor of the influencer. Estate of Kreher, 107
Cal. App. 2d 831, 839, 238 P.2d 150, 156 (1951).
B. Undue influence often comes about because of false statements by the
influencer about the contestant, but that is not required. The influencer’s
making of completely true statements about the contestant may still result in
undue influence where the transferor’s will is overborne by the influencer’s
conduct. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 182, 48 Cal. Rptr.2d
197, 205 (1995).
C. Unlike lack of capacity which normally infects the entire challenged document,
a finding of undue influence may require a voiding of only that part of the
document found to be the result of such undue influence, leaving the remainder
to stand if “it is not inconsistent with and can be separated from the part which
is invalid.” Estate of Molera, 23 Cal. App. 3d 993, 1001, 100 Cal. Rptr. 696,
701 (1972).
D. As with lack of capacity, the contestant alleging undue influence initially has
the burden of proving such defect in the challenged testamentary document.
E.g., Cal. Probate Code § 8252(a).
E. But the burden can shift. At least in cases of wills and revocable trusts, there is
a presumption of undue influence where: (1) There existed a confidential
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relationship between the transferor and the transferee; (2) that transferee
actively participated in procuring the execution of the testamentary document;
and (3) that transferee unduly profits by the testamentary document. If the
presumption arises, then the transferee has the burden of showing that the
testamentary document was freely made by the transferor. Estate of Mann, 184
Cal. App. 3d 593, 606, 229 Cal. Rptr. 225, 232 (1986).
F. The burden may shift even more easily in cases of irrevocable inter vivos
trusts. “While no presumption of undue influence is indulged in upon the
contest of a will unless confidential relations are first established, with respect
to gifts or conveyances inter vivos the susceptibility to imposition, the extreme
age and infirmity of the grantor, together with slight evidence of circumstances
from which it may be inferred that the instrument was the product of coercion,
will suffice to shift the burden and require the beneficiary to show
affirmatively that the transaction was fair and free from influence.” O'Neil v.
Spillane (1975) 45 Cal. App. 3d 147, 155, 119 Cal.Rptr. 245, 252 (1975).
1. Spillane applied Cal. Civil Code § 1575 to an inter vivos gift deed. That
statute, which applies outside the context of will contests in California,
defines “undue influence” as: “1. In the use, by one in whom a
confidence is reposed by another, or who holds a real or apparent
authority over him, of such confidence or authority for the purpose of
obtaining an unfair advantage over him; 2. In taking an unfair advantage
of another's weakness of mind; or, 3. In taking a grossly oppressive and
unfair advantage of another's necessities or distress.”
G. Presumption of Undue Influence
1. Confidential Relationships
a. Whether a confidential relationship exists is usually a question of
fact to be determined on a case-by-case basis. O'Neil v. Spillane
(1975) 45 Cal. App. 3d 147, 153, 119 Cal. Rptr. 245, 250 (1975).
b. A confidential relationship exists whenever the transferor places
trust and confidence in the integrity and fidelity of another
person. Estate of Rugani, 108 Cal. App. 2d 624, 630, 239 P.2d
500, 504 (1952).
c. Some relationships are deemed as a matter of law to be such that
any testamentary disposition to a person in the relationship is
presumed to be the result of undue influence. For example, in
California:
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1) Transfers to certain care custodians, persons in a fiduciary
relationship with the transferor who also transcribed the
instrument or caused it to be transcribed, and persons
related to or employed by or cohabiting with care
custodians or such fiduciaries are presumed to have
obtained the transfers by fraud or undue influence, which
presumption can be overcome but only by clear and
convincing evidence. Cal. Probate Code § 21380(a) and
(b). (Persons who are related by blood to the transferor
are exempt from these presumptions. Cal. Probate Code
§ 21382. Also, persons for whom a written certificate of
independent review is executed in a prescribed form by an
attorney who counsels the transferor outside the presence
of the beneficiary about the nature and consequences of
transfer and attests that the transfer is not the product of
fraud or undue influence are exempt from these
presumptions. Cal. Probate Code § 21384.)
2) Transfers to the person who drafted the testamentary
document, relatives of such person, employees and
cohabitants of such person, and partners and shareholders
and employees of a law firm in which such person has an
ownership interest are conclusively presumed to have
obtained by fraud or undue influence. Cal. Probate Code
§ 21380(a) and (c). (Again, persons who are related by
blood to the transferor are exempt from the presumptions,
Cal. Probate Code § 21382, as are persons for whom an
appropriate certificate of independent review by an
attorney is executed. Cal. Probate Code § 21384.)
3) California law usually requires a will to be attested to by
two subscribing witnesses. Where a subscribing witness
also receives a devise under the will (other than in a
purely fiduciary capacity), it is rebuttably presumed that
such witness obtained the devise through duress, menace,
fraud, or undue influence unless there are at least two
other, disinterested, subscribing witnesses to the will.
4) Where a person with an interest in an instrument that
makes a donative transfer physically signs the document
on behalf of the transferor, such signature is presumed
invalid unless the signer proves that the transferor
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intended to have the signer sign his or her name purely as
a mechanical act on behalf of the transferor. Estate of
Stephens, 28 Cal. 4th 665, 677-78, 122 Cal. Rptr. 2d 358,
367, 49 P.3d 1093, 1100-01 (2002).
5) Where the presumptions in the preceding paragraphs do
not arise, a contestant may still allege and prove that the
transfer was the product of undue influence. The
contestant simply would not have the benefit of the
presumption in such a case.
2. Transferee’s participation in procuring document.
a. A challenged transferee was found to have participated in
procuring the challenged document where the challenged
transferee was present when the will was executed, the transferee
gave the decedent pen, ink and paper, the decedent then wrote the
will and immediately gave it to the challenged transferee, and the
challenged transferee then took it to his own attorney (whom the
decedent did not know). Estate of Garibaldi, 57 Cal. 2d 108,
113, 17 Cal. Rptr. 623, 626, 367 P.2d 39, 42 (1961).
b. But “’[T]he mere fact of the beneficiary procuring an attorney to
prepare the will is not sufficient “activity” to bring the
presumption into play . . .; or selection of attorney and
accompanying testator to his office . . .; or mere presence in the
attorney’s outer office; . . . or presence at the execution of the
will . . .; or presence during the giving of instructions for the will
and at its execution . . . .’” Estate of Mann, 184 Cal. App. 3d
593, 608, 229 Cal. Rptr. 225, 233 (1986).
c. It also is not inappropriate for a challenged transferee to have
encouraged the transferor to make a testamentary document
where the challenged transferee did not urge any particular
disposition of the subject property. See Estate of Mann, 184 Cal.
App. 3d 593, 608, 229 Cal. Rptr. 225, 233 (1986).
d. The fact that the challenged transferee took the transferor to the
transferee’s own attorney also is insufficient to establish that the
transferee participated in procuring the document unless the
choice to use that attorney was obtained by deception. Estate of
Beckley, 233 Cal. App. 2d 341, 348, 43 Cal. Rptr. 649, 654
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(1965); Estate of Mann, 184 Cal. App. 3d 593, 608, 229 Cal.
Rptr. 225, 233 (1986).
3. Undue profit.
a. A will or codicil may give an undue benefit where “the will was
unnatural.” Estate of Mann, 184 Cal. App. 3d 593, 606, 229 Cal.
Rptr. 225, 232 (1986).
b. Whether a benefit is undue or unnatural is usually a question of
fact focused on the relationship between the transferor and the
relevant parties, and circumstances that may be considered
include dispositional provisions in prior versions of the estate
plan, past expressions of the decedent's testamentary intentions,
and the extent to which the relevant parties would benefit in the
absence of the challenged document. Estate of Sarabia, 221 Cal.
App. 3d 599, 607-08, 270 Cal. Rptr. 560, 564-65 (1990).
c. It is not unnatural to provide for “one who has had a particularly
close relationship with, or cared for the testator, or is in
comparatively greater need of financial assistance.” Estate of
Mann, 184 Cal. App. 3d 593, 607, 229 Cal. Rptr. 225, 232 (1986)
4. Absence of any of the foregoing factors needed to shift the burden of
proof does not preclude a finding of undue influence. Such absence
merely leaves the burden of proof with the claimant.
H. Mental state of the transferor
1. Undue influence does not require a showing that the transferor lacked
capacity to make the challenged document, and undue influence may be
found even if the transferor had no reduced capacity of any kind.
2. But the reality is that “in nearly every case where a will has been set
aside as the result of undue influence . . . there has existed the element
of a mind and will weak or for some reason impaired.” Estate of
Anderson, 185 Cal. 700, 708, 198 P. 407, 410 (1921).
3. The transferor’s state of mind is often a relevant factor because a person
in a weakened state of mind (which could be due to any number of
factors, including some form of senility or dementia, physical or mental
illness, medications, alcohol or drug use, loneliness, dependence on
others for physical or financial care, death of a loved one, divorce, etc.)
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may be more susceptible to subversion of his or her free will. See
Estate of Yale, 214 Cal. 115, 122, 4 P.2d 153, 156 (1931); Estate of
Anderson, 185 Cal. 700, 707-08, 198 P. 407, 410 (1921).
I. Recent Developments
1. Effective January 1, 2014, California has adopted some new statutes
that provide further definition of what constitutes undue influence and
which statutes “supplement” the common law.
2. Cal. Probate Code § 86 now states that “Undue influence” has the same
meaning as in Cal. Welfare & Institutions Code § 15610.70 and that
“the intent of the Legislature [is] that this section supplement the
common law meaning of undue influence without superseding or
interfering with the operation of that law.”
3. If the new statutes only supplement the common law without
superseding or interfering with it, does this mean that the new statutes
only explain what already was the common law and can therefore be
used in any case (whether already pending or filed hereafter) in any
state following the common law of undue influence?
4. Cal. Welfare & Institutions Code § 15610.70(a) defines “Undue
influence” generally as “excessive persuasion that causes another person
to act or refrain from acting by overcoming that person’s free will and
results in inequity.” This sounds much like the common law.
a. The “results in inequity” may not be required to prove undue
influence under the common law. Section 15610.70(b) expressly
provides that proof of an inequitable result is not alone enough to
establish undue influence.
5. Cal. Welfare & Institutions Code § 15610.70(a)(1)-(4) go on to
enumerate factors to be considered in determining whether there has
been undue influence, “all [of which] shall be considered.” They
include:
a. The victim’s vulnerability, evidence of which may include
“incapacity, illness, disability, injury, age, education,
impaired cognitive function, emotional distress, isolation, or
dependency, and whether the influencer knew or should have
known of the alleged victim's vulnerability.”
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b. The influencer's apparent authority, evidence of which may
include “status as a fiduciary, family member, care provider,
health care professional, legal professional, spiritual adviser,
expert, or other qualification.”
c. The influencer’s conduct, evidence of which may include
“(A) Controlling necessaries of life, medication, the victim's
interactions with others, access to information, or sleep;
(B) Use of affection, intimidation, or coercion; (C) Initiation
of changes in personal or property rights, use of haste or
secrecy in effecting those changes, effecting changes at
inappropriate times and places, and claims of expertise in
effecting changes.”
d. The equity of challenged result, evidence of which may
include “the economic consequences to the victim, any
divergence from the victim's prior intent or course of conduct
or dealing, the relationship of the value conveyed to the value
of any services or consideration received, or the
appropriateness of the change in light of the length and nature
of the relationship.
6. Whether or not the foregoing is controlling in any particular estate
planner’s jurisdiction, there would not appear to be any harm in
considering the above factors when considering whether drafting any
particular document might run afoul of undue influence law, and
someone litigating the validity of an estate plan could argue that these
factors are all part of the overall circumstances that a court generally
considers when deciding a claim of undue influence.
IV. Fraud
A. Although evidence of fraudulent conduct may support a claim of undue
influence (such as where the challenged beneficiary uses fraudulent
misrepresentations to unduly influence the transferor to favor the challenged
transferee over the contesting party), fraud may be a separate basis on which to
void a testamentary document.
B. As with undue influence, fraud may be a basis on which to void an entire
testamentary document or, alternatively, only that portion that was procured by
fraud where such portion can be severed from the remainder. Estate of
Carson, 184 Cal. 437, 441, 194 P. 5, 8 (1920).
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C. Fraud is similar to undue influence. The key difference is that in fraud cases,
transferors may have been acting of their own free will but were deceived into
doing something they would not have done but for the fraudulent
misrepresentations. Estate of Newhall, 190 Cal. 709, 718, 214 P. 231, 235, 28
A.L.R. 778 (1923).
D. Fraud also requires proof that the alleged fraudfeasor intended to deceive the
transferor or intended to induce the transferor to execute the testamentary
document. Estate of Newhall, 190 Cal. 709, 719, 214 P. 231, 235, 28 A.L.R.
778 (1923).
E. The contestant alleging fraud also must prove that such fraud was present when
the testamentary document was executed, either by showing that the fraudulent
conduct was engaged in at the time the document was made or that it was
engaged in at some earlier time and that the transferor’s belief in it persisted
through the time the document was executed. Estate of Newhall, 190 Cal. 709,
722, 214 P. 231, 236, 28 A.L.R. 778 (1923).
V. Mistake
A. Mistake is not often used as a ground to void or reform a testamentary
document, but there are a few instances where it is used.
B. For example, in a case where drafting errors in the relevant documents led to
ambiguities in an estate plan, a court held that the equitable common law
power of a court could be used to reform a trust agreement based on mistake
but could not be used to create a new trust agreement. Ike v. Doolittle, 61 Cal.
App. 4th 51, 85, 70 Cal. Rptr. 2d 887, 908-09 (1998).
C. But other authority holds that, if a will by mistake omits a devise that the
testator intended to make, such omission cannot be cured under the mistake
doctrine because to do so would be to make a new will, not to merely cure
some ambiguity. In re Page's Trusts, 254 Cal. App. 2d 702, 719, 62 Cal. Rptr.
740, 752 (1967).
D. Where a transferor through mistake signs the wrong document or signs a
document that differs materially from what he or she believed it to contain,
such document may be set aside on the grounds of mistake. See generally 79
Am. Jur. 2d Wills §§ 415-20.
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VI. Effect Of Setting Aside A Testamentary Instrument
A. Under the doctrine of dependent relative revocation, where a testamentary
document that revokes or supersedes prior documents is set aside as ineffective
(including because of lack of capacity, undue influence, fraud, or mistake), it is
presumed that the transferor intended the most recent effective document to
continue in place unless and until superseded by another effective document,
and the most recent effective document is thus deemed to be the binding
expression of the transferor’s intent (“i.e., the revocation is not absolute, but is
relative, and dependent upon the validity of” the subsequent document). Estate
of Anderson, 56 Cal. App. 4th 235, 242-43, 65 Cal. Rptr. 2d 307, 312 (1997).
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 123604 Court of Appeal,
Sixth District, California.
Susan D. LINTZ, et al., Plaintiffs and Respondents,
v. Lois Lynne LINTZ, Defendant and Appellant.
H037738 | Filed January 14, 2014
(Monterey County Super. Ct. No. MP19531)
Attorneys and Law Firms
Counsel for Plaintiff/Respondent: Albert J. Nicora, Nicora
and Hespe, LLP, James Matthew Wagstaffe, Kerr &
Wagstaffe
Counsel for Defendant/Appellant: James L. Dawson,
Nicholas Garrett Emanuel, Gates Eisenhart Dawson
Opinion
Grover, J.
Defendant Lois Lynne Lintz appeals from a judgment of
financial elder abuse, undue influence, breach of fiduciary
duty, conversion of separate property, and constructive
trust. Defendant challenges only the remedial aspect of
the judgment. She argues that the probate court erred by
voiding her deceased husband’s testamentary trusts and
trust amendments executed after May 2005 without proof
of undue influence in connection with the execution of
those documents. She argues further that the probate
court’s invalidation of the trust documents
unconstitutionally interferes with her marital relationship.
Although the probate court applied the incorrect standard
for legal capacity and failed to apply a presumption of
undue influence to the interspousal transactions at issue
here, we will affirm the judgment because it is amply
supported by the evidence, especially in light of the
higher burdens incorrectly placed on plaintiffs below, and
we find no error in the remedy.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was the third wife of decedent Robert Lintz.
The couple married in 1999, divorced approximately six
months later, and remarried in February 2005. Their
second marriage ended when decedent died in October
2009 at age 81. Defendant has two children from a
previous marriage. Decedent had three children from two
previous marriages, and two grandchildren. When
decedent remarried defendant in 2005, he was a retired
real estate developer worth millions of dollars. Decedent
had a complicated estate plan, with holdings in both
northern and southern California. Decedent’s northern
California estate plan was contained in the Robert Lintz
Trust (the trust) and a series of amendments to the trust,
prepared over the years by decedent’s estate lawyers. The
ninth amendment to the trust, in effect when decedent and
defendant remarried, provided for decedent’s children,
grandchildren, and former son-in-law upon decedent’s
death.
In May 2005 decedent executed a tenth amendment to the
trust. The tenth amendment provided defendant with fifty
percent of decedent’s assets upon his death, with the
remaining fifty percent to be distributed among
decedent’s children and grandchildren. Between May
2005 and 2008 decedent executed several additional trust
amendments, increasingly providing defendant with more
of decedent’s assets upon his death and disinheriting his
two eldest children. Ultimately, in June 2008 defendant
and decedent, as joint settlors and trustees, executed the
Lintz Family Revocable Trust. The trust, prepared by
defendant’s attorney at defendant’s direction, purportedly
designated all of decedent’s property as community
property, gave defendant an exclusive life interest in
decedent’s estate, and gave defendant the right to
disinherit decedent’s youngest child and leave any
unspent residue to defendant’s two children.
Upon decedent’s death, decedent’s older children,
plaintiffs Susan Lintz and James Lintz, as decedent’s
successors in interest, filed a second amended complaint
against defendant alleging several causes of action
including fiduciary abuse of an elder, breach of fiduciary
duty, conversion, constructive trust, and undue influence.1
Following a 15–day bench trial, the probate court issued a
25–page statement of decision finding defendant liable for
financial elder abuse under Welfare and Institutions Code
section 15610.30, breach of fiduciary duty, conversion of
separate property funds, and finding defendant in
constructive trust of decedent’s converted funds and trust
property. The court ruled that decedent had testamentary
capacity to execute the trust instruments, but it found
defendant liable for undue influence in the procurement of
decedent’s estate plans.
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
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Among several remedies, the probate court voided all
trusts and trust amendments following the tenth
amendment to the trust, invalidated real property deeds,
and took steps to implement the terms of the tenth
amendment. The court concluded that much of
defendant’s spending during her marriage to decedent
constituted acts of financial abuse and conversion, and
awarded plaintiffs attorney’s fees and costs for proving
financial elder abuse under Welfare and Institutions Code
section 15610.30.
II. DISCUSSION
A. LEGAL CAPACITY STANDARD
Probate Code sections 810 to 812 set forth a mental
capacity standard related to certain legal acts and
decisions. Section 810 establishes a rebuttable
presumption “that all persons have the capacity to make
decisions and to be responsible for their acts or
decisions,” recognizing that persons with mental or
physical disorders “may still be capable of contracting,
conveying, marrying, making medical decisions,
executing wills or trusts, and performing other actions.”
(Prob.Code, § 810, subds.(a), (b).) Section 811,
subdivision (a) provides that a person lacks capacity when
there is a deficit in at least one identified mental function
and “a correlation [exists] between the deficit or deficits
and the decision or acts in question.” Section 812
provides: “Except where otherwise provided by law,
including, but not limited to, ... the statutory and
decisional law of testamentary capacity, a person lacks
the capacity to make a decision unless the person has the
ability to communicate ... the decision, and to understand
and appreciate, to the extent relevant ...:[¶] (a) The rights,
duties, and responsibilities created by, or affected by the
decision[;] [¶] (b) The probable consequences for the
decisionmaker and, where appropriate, the persons
affected by the decision[; and] (c) [¶] The significant
risks, benefits, and reasonable alternatives involved in the
decision.” (Prob.Code § 812, subds. (a)-(c).)
In contrast, Probate Code section 6100.5, the standard
applied by the probate court, contemplates a significantly
lower mental capacity standard for the making of a will,
requiring only that the person understand the nature of the
testamentary act, the nature of the property at issue, and
his or her relationship to those affected by the will,
including parents, spouse, and descendents. (Prob.Code, §
6100.5.)
In Anderson v. Hunt (2011) 196 Cal.App.4th 722, 730
(Anderson ) the court addressed “the measure by which a
court should evaluate a decedent’s capacity to make an
after-death transfer by trust.” Anderson ruled that Probate
Code section 6100.5 applied to the mental competency to
make a will, not to a testamentary transfer in general. It
thus rejected the notion that the decedent’s competency
was determined under Probate Code section 6100.5. The
court explained that Probate Code sections 810 through
812 do not impose a single standard of contractual
capacity. Because each section provides that capacity be
evaluated in light of the complexity of the decision or act
in question,2 capacity to execute a trust “must be
evaluated by a person’s ability to appreciate the
consequences of the particular act he or she wishes to
take.” (Anderson, supra, at p. 730.) Indeed, “[m]ore
complicated decisions and transactions thus would appear
to require greater mental function; less complicated
decisions and transactions would appear to require less
mental function.” (Ibid.)
Anderson further concluded that, when a trust amendment
closely resembles a will or codicil “in its content and
complexity,” a court should look to Probate Code section
6100.5 to determine whether, under Probate Code section
811, subdivision (b), a person lacks the mental function “
‘to understand and appreciate the consequences of his or
her actions with regard to the type of act or decision in
question.’ “ (Anderson, supra, 196 Cal.App.4th at p. 731.)
“[W]hile section 6100.5 is not directly applicable to
determine competency to make or amend a trust, it is
made applicable through section 811 to trusts or trust
amendments that are analogous to wills or codicils.”
(Ibid.) Because the trust amendments in Anderson merely
reallocated the percentage of the trust estate among
beneficiaries, the court considered them indistinguishable
from a will or codicil and concluded that the decedent’s
capacity should have been evaluated under the lower
capacity standard of Probate Code section 6100.5.
(Anderson, supra, at p. 731.)
Adopting the reasoning of Anderson, we conclude that the
probate court erred by applying the Probate Code section
6100.5 testamentary capacity standard to the trusts and
trust amendments at issue in this case instead of the
sliding-scale contractual standard in Probate Code
sections 810 through 812. The trust instruments here were
unquestionably more complex than a will or codicil. They
addressed community property concerns, provided for
income distribution during the life of the surviving
spouse, and provided for the creation of multiple trusts,
one contemplating estate tax consequences, upon the
death of the surviving spouse.
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
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B. UNDUE INFLUENCE PRESUMPTION
In property-related transactions between spouses, Family
Code section 721, subdivision (b) “imposes a duty of the
highest good faith and fair dealing on each spouse....”
This duty stems from the “general rules governing
fiduciary relationships which control the actions of
persons occupying confidential relations with each other,”
prohibiting each spouse from taking “any unfair
advantage of the other.” (Ibid.) Thus, “ ‘[i]f one spouse
secures an advantage from the transaction, a statutory
presumption arises under section 721 that the advantaged
spouse exercised undue influence and the transaction will
be set aside.’ “ (In re Marriage of Fossum (2011) 192
Cal.App.4th 336, 344.) An advantage results to one
spouse when that spouse gains or when the other spouse is
hurt by the transaction. (Gaines v. California Trust Co.
(1941) 48 Cal.App.2d 709, 714.) A spouse obtains an
advantage when the “spouse’s position is improved, he or
she obtains a favorable opportunity, or otherwise gains,
benefits, or profits. (Citation.)” (In re Marriage of
Mathews (2005) 133 Cal.App.4th 624, 629.) The
presumption is rebuttable; the spouse advantaged by the
transaction must establish that the disadvantaged spouse
acted freely and voluntarily, with “ ‘ “full knowledge of
all the facts, and with a complete understanding of the
effect of the” transaction.’ “ (In re Marriage of Fossum,
supra, 192 Cal.App.4th at p. 344.)
Family Code section 721 applies here. Although we were
not provided with transcripts of the two-day closing
arguments, there is no indication in the record before us
that the probate court applied the presumption of undue
influence arising from that section. The presumption
should have been applied to the transmutation of
decedent’s separate property to community property and
to the huge sums of money decedent transferred to
defendant. It also should have been applied to the Lintz
Family Revocable Trust, which was a contract between
decedent and defendant both as settlors and as trustees.
(In re Estate of Bodger (1955) 130 Cal.App.2d 416, 424
[“A declaration of trust constitutes a contract between the
trustor and the trustee for the benefit of a third party.”].)
The trust advantaged defendant by granting her an
exclusive and virtually unfettered life estate in decedent’s
property, disinheriting two of decedent’s three children,
and giving defendant the right to disinherit decedent’s
third child and pass decedent’s property either to her own
children or to her individual estate.
The probate court should have applied the presumption of
undue influence, thereby shifting the burden to defendant
to rebut the presumption. Even without that burden,
defendant did not prevail on the issue of undue influence
below. Our conclusion that the presumption applies only
weakens her position on appeal.
C. CHALLENGE S TO UNDUE INFLUENCE
FINDING
Consistent with common law, our Supreme Court has
described undue influence, in the context of a
testamentary disposition of property by will or trust, as
“pressure brought to bear directly on the testamentary act,
sufficient to overcome the testator’s free will, amounting
in effect to coercion destroying the testator’s free
agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96 (Rice );
see also Hagen v. Hickenbottom (1995) 41 Cal.App.4th
168, 182 [applying testamentary principles of undue
influence to estate plans executed by inter vivos trust and
pour-over will].)
Defendant argues that the probate court erred by voiding
all trust instruments executed after the May 2005 tenth
amendment based on a finding that defendant exerted
undue influence, without evidence of such influence being
exercised at the time the documents were actually signed.
Defendant concedes the court’s factual findings are
sufficient to support liability for financial elder abuse
under Welfare and Institutions Code section 15610.30,
but she argues that they are insufficient to void a
testamentary document. As framed, the issue presents a
question of law that we review de novo. (Ghirardo v.
Antonioli (1994) 8 Cal.4th 791, 799.)
1. Undue Influence May Be Proven By Circumstantial
Evidence
In In re Welsh (1954) 43 Cal.2d 173, quoting Estate of
Gleason (1913) 164 Cal. 756, 765, the Supreme Court
recognized the settled law that undue influence requires a
showing that the testator’s free will was overpowered “at
the very time the will was made.” Defendant relies on the
quoted language in In re Welsh to argue that no evidence
established that decedent’s free will was overborne at the
time the testamentary documents were executed. Given
the extensive circumstantial evidence supporting the
probate court’s undue influence finding, we can only
understand defendant to be arguing that plaintiffs failed to
produce any direct evidence of undue influence at the
time decedent signed the testamentary documents. But
plaintiffs are not required to prove their case by direct
evidence.
“Direct evidence as to undue influence is rarely
obtainable and hence a court or jury must determine the
issue of undue influence by inferences drawn from all the
facts and circumstances.” (Hannam v. Griffith (1951) 106
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
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Cal.App.2d 782, 786; see also David v. Hermann (2005)
129 Cal.App.4th 672, 684 [proof of undue influence in the
execution of a testamentary instrument by circumstantial
evidence usually requires a number of factors]; In re
Estate of Easton (1934) 140 Cal.App. 367, 371 [requiring
direct or circumstantial evidence of “pressure which
overpowers the volition of the testator and operates
directly on the testamentary act”].) Thus, while pressure
must be brought to bear directly on the testamentary act,
the pressure, or undue influence, may be established by
circumstantial evidence. (In re Estate of McDevitt (1892)
95 Cal. 17, 33.) As a matter of law, the probate court’s
undue influence finding need not be supported by direct
evidence of undue influence at the moment decedent
signed the trust instruments.
2. The Undue Influence Finding was Separate From
the Welfare and Institutions Code Financial Elder
Abuse Finding
We reject defendant’s assertion that the probate court’s
undue influence finding was made under Welfare and
Institutions Code section 15610.30. The version of
Welfare and Institutions Code section 15610.30 in effect
at trial provided that financial abuse of an elder occurred
when property was taken for a wrongful use, or with
intent to defraud, or by undue influence as defined in
Civil Code section 1575. Civil Code section 1575 defines
undue influence as: “(1) In the use, by one in whom a
confidence is reposed by another, or who holds a real or
apparent authority over him, of such confidence or
authority for the purpose of obtaining an unfair advantage
over him; (2) In taking an unfair advantage of another’s
weakness of mind; or (3) In taking a grossly oppressive
and unfair advantage of another’s necessities or distress.”
Some courts have required the same undue influence
showing under Civil Code section 1575 as is required to
void a testamentary document under the Probate Code.
For example, in Keithley v. Civil Service Bd. (1970) 11
Cal.App.3d 443, 451, an unlawful discharge case, the
First District Court of Appeal, citing to In re Estate of
Bixler (1924) 194 Cal. 585 (a will contest case) described
the inquiry under section 1575 as whether “one’s will was
overborne and he was induced to do or forbear to do an
act which he would not do, or would do, if left to act
freely.” In Odorizzi v. Bloomfield School Dist. (1966) 246
Cal.App.2d 123, 132, also involving an employment
matter, the Second District Court of Appeal described
undue influence as “occur[ring] whenever there results
‘that kind of influence or supremacy of one mind over
another by which that other is prevented from acting
according to his own wish or judgment, and whereby the
will of the person is overborne and he is induced to do or
forbear to do an act which he would not do, or would do,
if left to act freely.’ (Citation.)”3
The probate court cited Welfare and Institutions Code
section 15610.30 to impose financial elder abuse liability
as to plaintiffs’ first cause of action for fiduciary abuse of
an elder. This liability is supported by the court’s findings
that “[decedent] did not know the extent of [defendant’s]
spending,” and that “[w]hile it is not uncommon for a
spouse to spend money or purchase items of which the
other is unaware, and the line between such conduct and
financial abuse is not always clear, what [defendant] did
in this case went well beyond the line of reasonable
conduct and constituted financial abuse,” and the court’s
further conclusion that much of defendant’s credit card
spending and writing herself checks from decedent’s bank
account during the marriage amounted to financial abuse.
In addition to finding defendant liable for Welfare and
Institutions Code section 15610.30 financial elder abuse,
the probate court found defendant liable under plaintiffs’
separately pleaded fifth cause of action for undue
influence. On that cause of action, the court concluded
defendant exerted undue influence specifically “to
procure estate plans and control over assets, according to
[defendant’s] wishes and contrary to the wishes of
[decedent].” In support of its finding, the court cited Civil
Code section 1567,4 Probate Code section 6104,5 and
Keithley v. Civil Service Bd., supra, 11 Cal.App.3d at p.
451 (describing undue influence as “whether from the
entire context it appears that one’s will was overborne and
he was induced to do or forbear to do an act which he
would not do, or would do, if left to act freely.”). It is
clear from the statement of decision that the court made
the undue influence finding as to the fifth cause of action
under the Probate Code, not the Welfare and Institutions
Code.
3. The Probate Court Applied the Proper Undue
Influence Standard to Void the Trust Documents
We are also unpersuaded by defendant’s argument that
the probate court conflated the former Welfare and
Institutions Code section 15610.30 undue influence
standard with the standard for undue influence under
Probate Code section 6104. We note that defendant does
not challenge the findings of fact or conclusions of law
contained in the statement of decision, and we therefore
presume them to be correct on appeal. (In re Marriage of
Arceneaux (1991) 51 Cal.3d 1130, 1133.) We presume
the evidence supports the conclusion that defendant used
undue influence over decedent “to procure estate plans ...,
according to her wishes and contrary to the wishes of
decedent.” But even without that presumption, the
statement of decision establishes the undue influence
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
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required to void a testamentary document; defendant’s
influence overcame decedent’s free will and operated
directly on the testamentary acts voided by the trial court.
(Rice, supra, 28 Cal.4th at p. 96.)
The probate court described decedent as “helpless[ ] and
susceptible[ ] to [defendant’s] wishes and influence
beyond the susceptibility which is normal incident of [sic
] a marital relationship.” According to the statement of
decision, decedent was fearful of defendant and unable to
exercise his free will over her when it came to his money.
Defendant took an increasingly active role in procuring
decedent’s estate plans following the tenth amendment,
increasingly benefiting from the later amendments.
Defendant misinformed decedent’s lawyers of decedent’s
testamentary wishes and ultimately discontinued the
services of decedent’s long-standing estate planning
lawyers under the pretext of a fee dispute. The probate
court also noted that decedent signed the Lintz Family
Revocable Trust-the most recent estate plan prepared by
defendant’s lawyer-outside the presence of his new
counsel and against new counsel’s advice. That document
provided for unspent residue to be left to defendant’s
children, and it gave defendant the power to disinherit
decedent’s youngest child whom he adored. Decedent’s
execution of that estate plan was inconsistent with the
statement he made to his lawyer (“Why shouldn’t we
leave the property to [decedent’s youngest child]?”) on
the same day defendant insisted to the lawyer that
decedent wanted everything left to her. It was also
inconsistent with decedent’s great dislike for one of
defendant’s children. (Hagen v. Hickenbottom, supra, 41
Cal.App.4th at p. 182 [undue influence in testamentary
act requires showing that proven circumstances are
inconsistent with voluntary action of testator].) We
conclude the probate court applied the proper undue
influence standard to void the trust documents.
D .DEFENDANT’S PROBATE CODE SECTION
17200 ARGUMENT
Defendant argues for the first time in her reply brief that
because plaintiffs failed to challenge the trust instruments
under Probate Code section 17200, subdivisions (a) and
(b), defendant was deprived of the opportunity to invoke
“the well established rules pertaining to contests over
testamentary instruments based upon an allegation of
undue influence.” Although defendant waived this
argument by failing to raise it in her opening brief (People
v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1232), we
also reject the argument on the merits. In the second
amended complaint, plaintiffs alleged undue influence
based on defendant’s “changing [decedent’s] long
standing estate plan.” In addition to seeking a
determination of undue influence, plaintiffs sought a
determination that the Lintz Family Trust was invalid, and
sought additional relief as the probate court deemed just
and proper. Thus, plaintiffs put defendant on notice of
their undue influence cause of action as it related to
decedent’s testamentary instruments, providing defendant
the opportunity to invoke any “well-established rules” in
defense of such a claim.
E. DEFENDANT’S SANCTITY OF MARRIAGE
ARGUMENT
Defendant argues that voiding the trust documents
because she “spent ‘too much’ of her husband’s money
during his lifetime” violates the sanctity of her marriage
to decedent under the California Constitution. This
argument fails because, as we explained above, the
probate court did not void the trust documents on that
basis. Apart from the probate court’s findings establishing
that defendant spent decedent’s money without his
knowledge and against his wishes, the trial court made
additional findings to support its undue influence
determination. Further, while the right to marry is
protected by the California Constitution (In re Marriage
Cases (2008) 43 Cal.4th 757, 809), the Constitution does
not diminish defendant’s fiduciary obligations to her
husband, nor shield her from liability for unlawful
conduct.
III. DISPOSITION
The judgment of the probate court is affirmed.
WE CONCUR:
Rushing, P.J.
Márquez, J.
Footnotes
1 Plaintiffs commenced the lawsuit before decedent’s death in conjunction with a conservatorship petition as proposed guardians ad
Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)
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litem.
2
Probate Code section 811, subdivision (a) requires “evidence of a correlation between the deficit and the decision or act in
question.” (Anderson, supra, 196 Cal.App.4th at p. 730.) Probate Code section 811, subdivision (b) provides that a deficit in
mental function is relevant only to the extent “it significantly impairs the person’s ability to appreciate the consequences of his or
her actions with regard to the type or act or decision in question.” (Anderson, supra, at p. 730.) And under Probate Code section
812, a person’s capacity is evaluated with regard to “the rights, duties, consequences, risks and benefits ‘involved in the decision.’
“ (Anderson, supra, at p. 730.)
3
During the pendency of this appeal, the Legislature amended Welfare and Institutions Code section 15610.30, subdivision (a)(3)
replacing “by undue influence, as defined in Civil Code section 1575” with “by undue influence, as defined by section 15610.70.”
(Assem. Bill No. 140 (2013–2014 Reg. Sess.) § 2.) The Legislature added a new section 15610.70 to the Welfare and Institutions
Code, defining undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming
that person’s free will and results in inequity,” and listing factors to be considered in making an undue influence determination
under section 15610.30. (Assem. Bill No. 140 (2013–2014 Reg. Sess.) at § 3.) The Legislature also added section 86 to the Probate
Code, providing that undue influence under the Probate Code has the same meaning as it does under Welfare and Institutions Code
section 15610.70. (Assem. Bill No. 140 (2013–2014 Reg. Sess.) § 1.) While this legislation, effective January 1, 2014, does not
affect our analysis, it eliminates any doubt that the two standards are now the same. Although the new reference to “excessive
persuasion” may not be entirely clear, perhaps calling to mind Aristophanes’ Lysistrata, the Legislature declared that the newly
applied definition is not intended to supersede or interfere with the common law meaning of undue influence. (Ibid.)
4
Civil Code section 1567 provides: “An apparent [contractual] consent is not real or free when obtained through: [¶]1. Duress; [¶]2.
Menace; [¶]3. Fraud; [¶]4. Undue influence; or, [¶]5. Mistake.”
5
Probate Code section 6104 provides: “The execution or revocation of a will or a part of a will is ineffective to the extent the
execution or revocation was procured by ... undue influence.”
End of Document
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