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It’s the Law: A gift left at death may violate California code

Gina G. MacDonald

Posted: September 17, 2009 9:16 p.m.
Updated: September 18, 2009 4:55 a.m.
 

The California Supreme Court has determined a dependent elder’s close friends who provided health care for her at the end of her life are presumed to have used undue influence if the elder includes them in a will or trust.   

Carmel Bosco, a widow who died childless at 97 years of age in 2001, left an estate valued at approximately $448,000.00. At the repeated urging of her friend, Ann Erman, Bosco had moved from her Alhambra residence to the Riverside house Earman shared with her boyfriend, James Foley, two months before Boscos death.

Erman testified she spent every day with Ms. Bosco, preparing her meals, assisting her to and from the bathroom, fixing her hair and cleaning her bedroom.  She also washed her, administered her oral medications, changed her diapers, bathed her and cared for Bosco’s wounds to her legs.

Three weeks before she died, Bosco amended a trust she had created and left her entire estate to Ms. Erman and Mr. Foley.

Bosco’s relatives filed an action to invalidate the transfer, claiming Erman and Foley were disqualified from receiving this after death transfer because they had been her “care custodians” within the meaning of Probate Code Section 21350. This statute bars a “care custodian” of a dependent adult from receiving a “donative transfer” (a gift) unless the person who is to receive the gift can prove, by independent, clear and convincing evidence, the bequest was not procured by fraud, menace, duress or undue influence.

The person receiving the gift does not have to “prove” the above facts if an independent attorney, engaged by the person wishing to leave such a gift, certifies in writing (a Certificate of Independent Review), the attorney has reviewed the transfer and determined the gift was not procured by fraud, menace, duress or undue influence.

Well, as you can guess, no such certificate was ever obtained. The Court concluded that close personal friends of the decedent were “caregivers” and invalidated Ms. Boscos gift of her estate.

If you believe relatives do not bring these types of cases, you are sorely wrong.

Our office has experienced relatives seeking to set aside transfers made by elders under the guise of alleging the person receiving the gift used “undue influence” to become the beneficiary of the estate.

Fortunately, the client understood the problem the beneficiary could face and not only agreed to see another attorney to obtain a declaration of independent review, but was also seen by a neurologist who set forth in writing the client had the capacity to know and appreciate the gift the client was leaving at death.   

The moral of this article should be, if anyone is involved in “do it yourself” estate planning, they may become ensnared in this statute if they are leaving property to a friend who may also become or is presently a “caregiver.”

I have seen many elders who receive care without paying for the service, in the belief they will leave their estate to the “caregiver” to say “thank-you” at death.

The type of thinking can “blow up” in the face of the persons receiving the gifts and could be avoided if proper legal assistance is obtained. If you want to leave anyone who you perceive may be characterized as a “caregiver” a testamentary gift, seek the proper legal help to make sure the gift holds up against legal attacks at death.

Gina MacDonald’s practice is limited to Estate Planning, Probate & Elder Law. MacDonald maintains her practice in the Santa Clarita Valley and can be reached at (661) 251-1300.  Her column represents his own views and not necessarily those of The Signal.  “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. www.SCVbar.org.

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