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Answered in 11 minutes by:
5/11/2013
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,498
Experience: Retired
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Without reviewing your formal complaint against the trustee, I'm not actually sure what you are claiming. So, I can't say that your case is viable or otherwise.

Not trying to duck the question -- just not sufficiently informed at this point.

Hope this helps (probably not, though).
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Customer reply replied 4 years ago

I am claiming that he severely abused her, neglected her (our mother), called her foul names daily, stole from her. And of course,he told her lies about me and my children. I learned something interesting during the depo with his lawyers a few days ago. There was a 1975 will that gave us a 50/50 split and it was in force for 28 years. His abuse was apparent by 1998 when he was arrested for threatening that girl. By 2003 with the new terms of the Trust, I was on the way out. And yes he has threatened me with physical harm and also my children with him chasing one out of the house after the funeral, a 911 call and a police response on the record. Therefore, I think I really need to get that police report in and you have given me some hope there.

So, you are claiming that the trust instrument was procured by undue influence, and therefore it should be declared void. See Rice v. Clark, (2002) 28 Cal.4th 89 ("Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence (§ 8252), this court and the Courts of Appeal have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument. (Estate of Fritschi supra, 60 Cal.2d at p. 376, 33 Cal.Rptr. 264, 384 P.2d 656; Estate of Sarabia, supra, 221 Cal.App.3d at p. 605, 270 Cal.Rptr. 560; Estate of Auen (1994) 30 Cal.App.4th 300, 309, 35 Cal.Rptr.2d 557; see also id. at p. 310, 35 Cal.Rptr.2d 557 [where person alleged to have exerted influence was testator's attorney, any benefit other than compensation for legal services may be considered 'undue'].)")

You appear to have some evidence of the defendant's custom of exerting undue influence over others. That could show the intent to do so in the particular instance of the trust. However, the question is whether or not there is any direct evidence that undue influence was actually exerted when the trust was made. For that, I do not see any evidence. Therefore, my answer, at this point, is that the case is not strong enough to prevail.

Please don't take my comments as dispositive. I don't have all of the facts. My opinion is based solely on the limited information provided.

Hope this helps.
socrateaser
socrateaser, Lawyer
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Customer reply replied 4 years ago

Thank god my youngest daughter lived with my mother for a few years during a particularly nasty divorce (I was divorcing an attorney who was eventually disgraced and disbarred) and saw most of what was going on, including statements from my brother saying, "We are going to the lawyer's office right now and get this fixed", etc. She actually saw him drive her there many times in addition to calling her foul names on a daily basis. Also a housekeeper saw much including the fact that he would not let us in the house during her later years. I have other witnesses and will try and get more. I hope this will help me.

Customer reply replied 4 years ago

I have another question and then I will leave you alone until next week when I get paid and can give a nice bonus. Maybe I have been placing too much attention to undue influence and not enough to capacity. I found out during the deposition with the social worker that my mother's condition was much worse just before the creation of the final 2009 Trust that was devastating to me and my kids. At the end of 2008, she had a heart attack and an aneurism and was in a skilled facility. When I came to visit her, she was flat on her back. The death certificate stated part of the reason for her death was too much Plavix. She was also on oxycontin, probably even more drugs. The real social workers at the University of Ca at Sf where she went for a procedure after the Trust stated to me that they did not understand why she had not been placed in a senior facility and recommended it. Get ready for this grossness--they stated they found a "long term genital fungus" on my mother. My question, is it better to go for capacity or undue influence. I have good evidence for both.,

Customer reply replied 4 years ago

See below.

"Too much Plavix."

My understanding of Plavix (generic: clopidogrel) is that patients can take much larger dosages than are generally prescribed without any adverse effects (other than a propensity to bleed out, if the patient is injured).

So, when you say that the cause of death was too much Plavix, it makes me wonder if the real cause of death was a homicide of some sort (injury to victim with a high load of blood thinners in her system, caused by negligence or malice).

Legal Capacity, on the other hand, means "A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act." Probate Code 811(a).

Yes, the definition is circular, but there are factors listed in the Code Section that detail proof of capacity -- so it's not as arbitrary as it first appears. Physical incapacity does not equate directly to mental incapacity. Stephen Hawkings is totally physically disabled by ALS, but he's still one of the top 10 theoretical physicists on the planet.

So, if you're going to claim legal incapacity, then you'll have to prove that your mother could not make financial decisions at the time she signed the trust instrument. This may or may not be as easy as proving undue influence.

Hope this helps.
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Customer reply replied 4 years ago

This is interesting, especially when you throw in the oxycontin plus probably more drugs. I guess I will have to subpoena her medical records. The cause of death was listed as heart failure and massive cerebral problems compounded by Plavix use. Thank god the attending physician listed Plavix as "contributing" to her death on the certificate. Maybe we can infer that as her caretaker, my brother did not monitor her med intake. Also, she was in such bad shape that she was in a nursing facility before she created the last Trust. I learned this during the depo that the other side insisted on. And to think that I tried to fight the taking of that depo! I will have more questions next week. Thank you.

I reviewed the medical literature. The consensus is:

Contraindications: Hypersensitivity; Active pathologic bleeding (eg, peptic ulcer, intracranial hemorrhage)

 

Cautions: Bleeding diathesis; May need to discontinue 5-10 days before elective surgical procedure; Patients allergic to aspirin who are undergoing PCI; see American Heart Association (AHA)/American College of Chest Physicians (ACCP)/American College of Cardiology (ACC) recommendation; Rare but potentially fatal thrombotic thrombocytopenic purpura associated with use; Risk of bleeding with potentially fatal outcome; Hepatic or renal impairment; Thienopyridine hypersensitivity; In transient ischemic attack (TIA) or stroke patients at risk for recurrence, combining clopidogrel with aspirin is not more effective but increases major bleeding.

 

The statement: "too much Plavix," cannot be the cause of death, in my opinion. However, elderly people get infections, which overwhelm their immune system, so just because the death certificate may not correctly identify cause of death, doesn't mean that the true cause is sinister in nature.

 

Best wishes.

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Customer reply replied 4 years ago


Thank you. I will leave you alone for a while. Your answers have been crisp, sympathetic and clear. I will have more questions next week.

I remain at your service.
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