Blog: Trusts & Estates Legal Updates

In 1978 California voters approved Proposition 13, a landmark measure that set—and has kept—property taxes at a low rate. This November’s ballot includes a proposition known as the “split roll” initiative that would make significant changes to Proposition 13.

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When Karl Lagerfeld passed away in February of 2019 in France, many speculated that his cat, Choupette, was well provided for as part of his estimated $150 million estate. This pampered feline was much loved by Mr. Lagerfeld during his life, and appeared in photoshoots and featured in many high-end fashion magazines. However, over a year after Mr. Lagerfeld’s death, certain media outlets have reported that the administrator of Mr. Lagerfeld’s estate has “disappeared.” Based on these reports, many question whether Choupette will ever be able to dig her claws into her alleged inheritance.

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In advising clients regarding the rights afforded to joint tenants on a bank account, most practitioners would say that the agreement with the financial institution generally would control, with the surviving joint tenant succeeding to the funds remaining in the account on the death of the other joint tenant.

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First, what is a contract to make a will?

A contract to make a will is exactly as it sounds.  It is an agreement to provide for a person as part of a decedent’s will.  The terms of the agreement could be as simple as a promise to provide services in exchange for a specific cash gift as part of a decedent’s will.  For example, Elizabeth may promise to provide caregiving and household services to William in exchange for William’s promise to provide her with $250,000 upon his death.  When William dies, hopefully his will has a provision leaving a specific cash gift of $250,000 to Elizabeth.  If not, then there has been a breach of the agreement.  The agreement can become substantially more complex, particularly when real property is the subject of the agreement.  Instead of agreeing to pay Elizabeth $250,000 in exchange for her services, William may promise to leave his house to Elizabeth.  Again, when William dies there may be a breach of the agreement if William’s will contains no provision instructing that his house be given to Elizabeth.

A contract to make a will in California can be oral or in writing.  The cases litigated often relate to oral agreements which are difficult to prove.  Further, the terms of the oral agreement may be so uncertain and indefinite that the agreement is incapable of being enforced.  In the above examples, the agreement between William and Elizabeth is potentially vague.  What are the specific terms of the agreement? What is the duration of the agreement? Does Elizabeth have to provide services for William’s lifetime?  What happens if Elizabeth ceases providing services or dies first? Would this simple agreement be enforceable if there were no writing?  These questions make litigation of these matters a near certainty.

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Thanks to Law and Order, we’re all familiar with the beginning of a person’s Miranda Warning: “You have the right to remain silent.  Anything you say can and will be used against you in a court of law.”  What many may not know, however, is that this is a right only afforded to those involved in criminal proceedings.  In civil cases, there is no constitutional right to refuse to testify.  Historically, this has been intended to ensure that our criminal justice system—which can deprive a person of their freedom, property, and even their life—remains accusatorial, not inquisitorial.  A civil matter, on the other hand, is meant to resolve disputes between individuals and does not threaten the same consequences, so public policy favors bringing forth the information that a person’s testimony offers, even if it is against his or her self-interest.

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In our monthly department meetings, the trusts and estates group at Weintraub keeps current by reviewing recent cases and discussing how they could affect our practice. See below for some highlights from the past few months:

Pena v. Dey – When is Self-Help Enforceable?

(Filed August 30, 2019)

The gist:

James Robert Anderson established a living trust in 2004, which he amended in 2008. He was diagnosed with abdominal cancer and brain cancer in 2011. After his diagnoses, Anderson became closer with an existing friend, Grey Dey, who eventually moved in with Anderson and provided care to him until Anderson’s death in May 2014.

In February 2014, Anderson contacted a new attorney, requesting changes to his trust. Anderson sent the attorney a marked up copy of a section of the first amendment that created fifteen separate trust shares of varying percentages to be distributed to different beneficiaries. Anderson altered eleven of those gifts, adding notes in margins, and attached a separate list of beneficiaries to divide the largest share. Anderson wrote a note to his attorney on a Post-it note that read, “Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.”

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Frequently when a conservatorship proceeding is commenced, the proposed conservatee is residing in his or her personal residence. Having a conservatorship established can be a distressing experience for a conservatee who has awareness of the effect of such a proceeding. One primary concern may be whether there is going to be a change to living arrangements with which the conservatee has been familiar, sometimes for decades. Naturally, it is commonplace for a conservatee to express that they “don’t want to go to a care home.” In recognition of the need to affirmatively preserve the right of conservatees to remain in their own personal residence, the California Legislature passed an amendment to existing law which applies a higher evidentiary standard before a conservator may move a conservatee from his or her personal residence.

Living in the Personal Residence. Under existing law, it is presumed that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee. That presumption may be overcome by a preponderance of the evidence. As of January 1, 2020, the presumption that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee may be overcome only on a showing of clear and convincing evidence, which is a higher standard.

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Last month, my Weintraub colleagues and I had the pleasure of speaking at the Professional Fiduciary Association of California annual conference on the topic of the attorney-client privilege and its application to clients serving in a fiduciary capacity (trustee, executor, conservator, agent, etc.).

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