Tuesday, August 22, 2006
California High Court Rules Testimentary Transfers to Deceased’s Care-Giving Friends Presumed Suspect
By a MetNews Staff Writer
A dependent elder’s close friends who provide 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, the California Supreme Court ruled yesterday.
In a 4-3 decision, the court affirmed this district’s Court of Appeal, which had overturned a contrary ruling by retired Los Angeles Superior Court Judge Robert O’Brien, sitting on assignment. O’Brien held that such non-professional caregivers are not included in the statutory scheme that prohibits testamentary transfers to “care custodians” unless they can show an absence of undue influence by independent, clear and convincing evidence.
Justice Kathryn M. Werdegar, writing for the Supreme Court, said:
“Regrettably, preexisting personal friendship is no guarantee against the exercise of fraud, menace, duress or undue influence over dependent adults.”
Carmel Bosco, a widow, died childless at 97 years of age in 2001, leaving an estate valued at approximately $448,000.
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 Bosco’s death.
Erman, who was once married to Bosco’s nephew, Arthur G. Erman, testified that she spent every day with her, prepared her meals, assisted her to and from the bathroom, helped her into bed, fixed her hair, cleaned her bedroom and did her laundry. She also said she washed her, administered oral medications, and helped Bosco apply ointments to a rash that had developed in her intimate areas. Erman also cared for Bosco’s wounds, applying salves and antibiotics to sores on her legs and thereafter bandaging those areas.
Foley testified he occasionally attended to Bosco’s personal needs, including helping to change the diapers she wore, making her bed, and assisting her with bathing. He applied topical medications to her body, sometimes with Erman’s assistance.
Foley also went through Bosco’s mail for her and, for the last six weeks of her life, handled all her financial and investment affairs, including her bank accounts.
Three days before she died, Bosco amended a trust she created in 1991, and left the entire residue of her estate to Erman and Foley. Neither had been named as a beneficiary in seven earlier versions of the trust.
Bosco’s relatives, including Arthur Erman, filed an action to invalidate the trust’s last amendment, claiming that Foley and Erman were disqualified to receive a testamentary transfer from Bosco because they had been her “care custodians” within the meaning of Probate Code Sec. 21350(a)(6), and did not fall within any exception to that statute.
The statute bars a “care custodian” of a dependent adult from receiving a donative transfer from his or her charge except as provided in Sec. 21351.
The latter section permits the bequest under certain specified conditions, including where the named beneficiary can prove by independent, clear and convincing evidence that the bequest was not procured by fraud, menace, duress, or undue influence.
Such a showing is not necessary, however, if an independent attorney engaged by the transferor certified to the transferor in writing that he or she reviewed the transfer and determined that it was not procured by fraud, menace, duress, or undue influence.
Noting that “Ann Erman had a personal relationship with decedent founded on a familial bond,” O’Brien ruled that the evidence was insufficient to establish a “business relationship” and thus Erman and Foley were not “care custodians” under the code. He dismissed the relatives’ petition.
Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, said that Erman and Foley were “care custodians” and had failed to rebut the statutory presumption that Bosco’s transfer to them was procured by undue influence.
Werdegar agreed, saying:
“We conclude that when an unrelated person renders substantial, ongoing health services to a dependent adult, that person may be a care custodian for purposes of the statutory scheme at issue, notwithstanding that the service relationship between the individuals arose out of a preexisting personal friendship rather than a professional or occupational connection.”
Chief Justice Ronal M. George and Justices Marvin R. Baxter and Ming W. Chin concurred with Werdegar.
In a concurring opinion, George suggested that the Legislature amend the statutes so that the presumption of undue influence would not apply to those who give long-term health care to a dependent adult.
In a dissenting opinion joined by Justices Joyce L. Kennard and Carlos R. Moreno, Justice Carol A. Corrigan said:
“[I]t seems unwise to penalize Good Samaritans by making them less eligible to receive the gratitude of those they help, the kinder they have been. . . . The law should not cast a jaundiced eye on those who provide such care to family or friends, and there is no reason to believe the Legislature intended such an outcome.”
The case is Bernard v. Foley, 06 S.O.S. 4377.
Copyright 2006, Metropolitan News Company