March 2020 Update
Due to news accounts of elderly residents abandoned at senior care homes during the 2017 California wildfires, the legislature amended the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600–15660) to add abandonment of an elder or dependent adult by anyone having care or custody of that person to the list of cases for which enhanced remedies are available. Welf & I C §15657. As with the previous categories (physical abuse and neglect), the plaintiff must prove both the physical abuse, neglect, or abandonment and that the defendant is guilty of recklessness, oppression, fraud, or malice by clear and convincing evidence. Abandonment claims are exempt (as are the other categories) from the limitations of CCP §377.34 (exclusion of damages for pain, suffering, or disfigurement from damages recoverable by the decedent’s personal representative or successor in interest), although the “damages recovered shall not exceed the damages permitted to be recovered” under CC §3333.2(b) ($250,000 limitation on noneconomic damages in actions for injury against health care providers based on professional negligence). For a discussion of EADACPA, see chap 8.
The amendment to Fam C §721(b) now explicitly references newly enacted Prob C §21385, excluding any presumption of undue influence created by Fam C §721(b) to at-death transfers between spouses. However, the undue influence presumption still can affect interspousal inter vivos transfers, and Prob C §21385 does not limit the application of other statutory or common law presumptions that may apply to interspousal at-death transfers. Prob C §21385(b). See §4.17R.
Changes were made to the prohibited transferee rules as they relate to a care custodian who becomes the spouse, domestic partner, or cohabitant of a dependent adult. The presumption of fraud and undue influence arising under Prob C §21380 for donative transfers, both inter vivos and at-death, may now apply in certain circumstances to a care custodian of the transferor who marries or becomes a cohabitant or domestic partner of the transferor, removing the previous blanket exemption of Prob C §21382(a). Application of the presumption is conditioned on the date of the marriage or commencement of the domestic partnership or cohabitation in relation to the rendering of caregiving services and on the date of the donative transfer or execution of the donative transfer in relation to the comanagement date of the marriage, cohabitation, or domestic partnership. Prob C §21380(a)(4). See §6A.15.
A similar change was made to the omitted spouse rules of Prob C §21611. Under new Prob C §21611(d), a spouse who married the decedent after the execution of the decedent’s estate plan will not receive a share if
The decedent was a dependent adult;
The spouse was the decedent’s care custodian;
The marriage commenced while the care custodian provided services to the decedent, or within 90 days after the services terminated; and
The decedent died less than 6 months after the marriage commenced.
However, the spouse may attempt to overcome the presumption that the marriage resulted from fraud or undue influence by clear and convincing evidence. Practitioners should keep these amendments in mind when evaluating a client’s case. See §4.11
Courts continue to find anti-SLAPP motions applicable to petitions to enforce no-contest clauses, with the court in Key v Tyler (2019) 34 CA5th 505 commenting that arguments as to why the anti-SLAPP statute should not apply to those actions are “for the Legislature to consider.”
Key v Tyler also considered the burden of proof in actions to enforce no-contest clauses, finding that the burden is on the party seeking enforcement to show that the contestant lacked probable clause. 34 CA5th at 528. See §5.11.
The legislature amended Prob C §6100.5, among other statutes, with the intent of replacing derogatory terms when referring to individuals with mental illness. Stats 2019 ch 9, §1. However, the legislature also made a minor amendment to Prob C §6100.5(a)(1), reformatting the list of the three mental functions required to show testamentary capacity. A strained reading of the amended Prob C §6100.5(a)(1) could lead to the conclusion that testamentary capacity is shown where the testator can perform any one of the three mental tasks listed in Prob C §6100.5(a)(1)(A)–(C), as opposed to the previous requirement that the testator must be able to perform all three tasks. However, the conclusion that the legislature intended to change the historical test for testamentary capacity is not supported by the legislative intent of the amendment, “to enact legislation to replace derogatory terms, including, but not limited to, ‘mental disorder’ and ‘mental defect’ with more culturally sensitive terms when referring to individuals with mental illness,” and is contrary to the interpretation of the former version of the statute and historical case law. See Stats 2019, ch 9, §1; Andersen v Hunt (2011) 196 CA4th 722), 727. This analysis has been added to a Practice Note in §6.3.
A split of authority apparently occurred between the Fourth and Second District Courts of Appeal as to calculation of damages under Prob C §859, which provides that the court may award damages of twice the value of the property recovered. Prior cases interpreted Prob C §859 to mean that the court may award the “double damages” in addition to the damages award for the property taken by the wrongdoer. See Kerley v Weber (2018) 27 CA5th 1187 (upholding judgment that included damages in amount of $1.4 million in addition to criminal court’s restitution award of $700,000). However, the Second District Court of Appeal found that such an award amounted to treble damages and limited the additional recovery under Prob C §859 to an amount equal to the value of the recovered property. Conservatorship of Ribal (2019) 31 CA5th 519 (arguing that award should be calculated by first assessing amount of damages and then doubling damages and assessing that amount separately as “unsupported by the law” and amounted to treble damages). However, the Ribal view appears to be an anomaly and inconsistent with how Prob C §859 damages are calculated by statute or in practice. See the analysis in §19.3A.
In Estate of Sapp (2019) 36 CA5th 86, the court clarified the standard for removal of a fiduciary for mismanagement originally set out in Estate of Feeney (1983) 139 CA3d 812. Feeney held that removal for mismanagement required the affirmative showing of “moral wrongdoing” on the part of the executor. 139 CA3d at 820. In Sapp, the court concluded that the trustee’s removal for mismanagement did not require any affirmative showing of moral wrongdoing, and instead adopted the more common-sense definition of mismanagement from Estate of Palm (1945) 68 CA2d 204. Estate of Sapp, 36 CA5th at 108. See §14.40.
The legislature also created a “rolling” update to the value limits for various nonprobate procedures, effective January 1, 2020. For example, the use of the collection or transfer of personal property by affidavit is now available for a gross estate value of up to $166,250. Prob C §13100. This amount will be adjusted on April 1, 2022, and at each 3-year interval ending on April 1 thereafter, based on the United States city average of the Consumer Price Index for All Urban Consumers, and rounded to the nearest $25. Prob C §§890 and 13100. While this book does not discuss the use of Prob C §13100 transfer affidavits, the change does affect application of the prohibited transferee statutes (Prob C §21382(e)) and the change is noted in §6A.25.
The Judicial Counsel adopted a new mandatory form for use in proceedings to determine a claim to property under Prob C §850, Notice of Hearing on Petition to Determine Claim to Property (Judicial Council Form DE-115/GC-015). See §19.10.