One heavily litigated area is when non-relatives get inheritance. Imagine this: A woman comes into the life of a man who is old and is about to die. She cares for him, feeds him, takes him to the doctor. Perhaps she bathes him and otherwise looks after his welfare. This man has other family, but they may be in another town and do not really know what is occurring. Perhaps he is in a nursing home and is being taken care of by attentive staff. Perhaps he has a housekeeper who goes beyond the call of duty. Perhaps a long lost friend drops by…
As we have the freedom to give our wealth to whomever we choose, can this man just give whatever he owns to the person who took care of his needs during his last days? The answer is not necessarily. In California, it is presumed that such transfers were done through "fraud, duress, menace or undue influence."
California Probate Code
§21350 governs what are known as "a donative transfers" to particular classes of people. It states any provisions in an instrument, such as a will or trust, won't be valid if the transfers are made to particular classes of people. These will include
The person who drafted the instrument
- A person related to the person who drafted the instrument
- A person who is a partner or shareholder a law partnership or law Corporation in the same organization as the person who drafted in the instrument
- A person who has a "fiduciary relationship" with the transferor
- A person who is related to the person who has a "fiduciary relationship"with the transferor
- A "care custodian" of a dependent adult who is the transferor
- A person related to the care custodian of a dependent adult who is the transferor
The biggest area of dispute in this area is who constitutes a "care custodian." This is defined broadly and statute. it is not restricted to individuals were paid by the care custodian or other family members to take care of the transferor. It could even be a friend of the transferor who took care of an elderly or sick person out of kindness. The Supreme Court in California was asked to carve out an exception for just such a person. However, in the case of
Bernard V. Folley, the only exceptions that apply are the exceptions that specifically exist in statute. it is possible for a friend who takes care of a sick or elderly individual to obtain a donative transfer, however, this must be done within the contours of probate code
§21351.
Under probate code
§21350.5 these individuals are "a disqualified persons"- they get nothing unless some specific exception applies.those exceptions are specified in probate code
§21351.
Probate code §21351 exams people who are related through blood or marriage, our cohabitants or registered domestic partners.
There is also a provision for a "certificate of independent review" where independent attorney can assess and certify that there was no fraud, menace, duress undue influence. the specific language of the certificate is a specified in statute.
Another procedure, is after full disclosure of the relationships of the persons involved, the instrument is approved in a conservatorship proceeding. Of course, if this is done, litigation after death surrounding disposition of property would be less likely.
Another "out" for a "a disqualified person" is if the court determines, "upon clear and convincing evidence, but not based solely upon the testimony of any person" who would otherwise be disqualified persons, that the transferor was not the product of fraud, menace, duress or undue influence. If there is fraud, menace, duress or undue influence, the disqualified person bears all costs, including reasonable attorneys fees.
If you are a family member of a deceased person, finding assets going to a stranger you should note, you probably have remedies.
