Week 5 Flashcards
What is 6454 about?
Rule? (2)
Why is it good?
Why is it bad?
Foster parents and stepparents for the purpose of determining intestate succession
Inheritance is allowed if both are met:
- The relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s foster parent or stepparent.
- It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.
Streamlines the process; don’t need standing or consent
Only happens if there is a legal barrier to adoption; have to have had intent to adopt
What is a foster parent?
a specific function in the law; a court labels you as such, not some gray area
When to use 6454?
What if not?
foster parents and step parents;
6455
What is 254 about? What’s the standard? (2) On whom is the burden?
how you show to a probate court that there is in fact felonious and intentional killing; “Judgment of conviction as conclusive; preponderance of evidence” (a) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this part. (b) In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this part.
What about the standard for undue influence? (2)
you’ll know it when you see it (the stated rule is not useful)
the debate will be about whether you believe the circumstantial evidence to prove undue influence
What is the stated rule for undue influence?
A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it:
- overcame the donor’s free will, and
- caused the donor to make a donative transfer that the donor would not otherwise have made
What is “Estate of Lakatosh” about?
Facts?
Issue?
Holding?
Rationale?
Why is it useful?
Undue influence
Appellant developed a confidential relationship with the decedent and decedent left virtually her entire estate to appellant. Appellant appeals from a judgment wherein the court refused to admit decedent’s will to probate on the ground of undue influence.
Undue influence?
Yes
The three elements of the test for undue influence were easily met. First, the confidential relationship was established by decedent’s dependency on appellant as well as the power of attorney. Second, appellant received the bulk of the estate. Third, decedent’s intellect was weakened as evidenced by the fact she was an elderly woman unable to prevent the consumption of her assets by the appellant and she was living in filth with her bills unpaid.
Gives us common law background
What is the difference between a power of attorney and a durable POA?
a regular PoA is revoked at incapacitation; a durable power of attorney is not
What is the common law background of undue influence? (2)
What’s an example of the second?
What happens when you prove this? (2)
- Confidential relationship (one or more of the three)
- Unnatural disposition, aka: suspicious circumstances
Get more than you would intestate
- Creates a presumption to rebut (which is often rebutted)
- by preponderance of the evidence
What are the three types of confidential relationship with regard to undue influence?
- fiduciary
- reliant
- dominant-subservient
What is a reliant relationship?
Examples? (2)
a relationship based on special trust and confidence, for example, that the donor was accustomed to be guided by the judgment or advice of the alleged wrongdoer or was justified in placing confidence in the belief that the alleged wrongdoer would act in the interest of the donor.
financial adviser/customer; doctor/patient
What is a dominant-subservient relationship?
Whether a dominant-subservient relationship exists is a question of fact. The contestant must establish that the donor was subservient to the alleged wrongdoer’s dominant influence. Such a relationship might exist between a hired caregiver and an ill or feeble donor or between an adult child and an ill or feeble parent.
What are the two methods of finding undue influence?
Sequence?
- Common law
- CA statute
Do statute first, and then look to common law
What kind of common law confidential relationship in Estate of Lakatosh?
How?
All three
- Fiduciary - power of attorney
- Reliant
- Dominant-subservient
What is the operative statute for undue influence?
How is it different from the common law? (3)
21380
If you are one of the (a)(1)-(6), presumption of undue influence is created (to rebut)
(b) : Presumption has to be rebutted by clear and convincing evidence (as opposed to preponderance of the evidence) in the statute.
(c) : Irrebuttable presumption if donee is drafter, or 4-6 of drafter (i.e., related to or employed by drafter, basically)
What statutes are related to 21380?
How?
21382 and 21384
Exceptions from presumption
What are 21382’s main exceptions? (3)
(1) if within the fourth degree by blood, not undue,
(2) even if drafted/transcribed the will
(3) transfer of 5k or less
What is 21384 about?
if you get another attorney to sign a certificate of independent review, then no 21380 (no presumption to rebut)
So what happens if there is a horrible child who is definitely using undue influence?
even though he is excepted from 21380 through 21382(a), will fall under common law undue influence
What’s special about 21384?
Can only get certificate while testator is alive
What is the definition of care-custodian?
any “protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults”
How do we treat people who have exerted undue influence?
treat them as having predeceased
