by Jeffrey Galvin
Can a California court stop others from changing an elder’s estate plan? Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust.
In White v. Wear (2022) ___ Cal.App.5th ___, the Court of Appeal reviewed the issuance of an elder abuse restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather. Such an order might preempt an estate planning change and thereby avoid a future contest over a will or trust.
A Long Running Battle Over Thomas Tedesco’s Trust
Thomas Tedesco was born in 1926. He and his wife Wanda created a trust in 1988 to benefit their three daughters, including Laura White. When Wanda passed in 2002, Thomas (then about 77) divided the trust into five subtrusts.
By the end of 2005, Thomas’ estate was valued in excess of $40 million.
Thomas married Gloria Basara in 2007. Gloria had two daughters from a prior relationship, including Debra Wear. Both Thomas and Gloria entered the marriage with substantial assets and so they signed prenuptial and postnuptial agreements.
Thomas, by 2013, had significant cognitive impairment that left him susceptible to undue influence by those close to him.
Gloria allegedly interfered with Thomas’ lengthy professional relationship with attorney Burton Mitchell. Gloria blocked Thomas from communicating with his daughters and removed their photographs from the house. Gloria also prepared scripts for Thomas in which he expressed the desire to leave 75 percent of his estate to Gloria and 25 percent to charity.
In 2015, Laura filed a petition in Riverside County Superior Court to appoint a conservator over Thomas’ person and estate. Since Gloria and Debra continued to seek to influence Thomas to change his estate plan, Laura sought and obtained a temporary restraining order against Debra that precluded her from facilitating Thomas’ access to any attorney regarding his estate plan. Yet the order apparently lapsed as it was not served on Debra.
After a contested trial, the court granted a conservatorship over Thomas’ estate, naming professional fiduciary Kenneth F. Jenkins as conservator.
The litigation continued notwithstanding the conservatorship. Debra worked as a paralegal for attorney Russell Davis, who repeatedly requested appointment as counsel for Thomas, but the probate court denied those requests on the ground that Thomas should have independent counsel.
Eventually, in April 2020, Laura as trustee of Thomas’ trust sought an elder abuse restraining order against Debra, Gloria, attorney Davis, and several others. Laura complained about a purported trust amendment dated January 2020 in which Thomas disinherited his biological daughters in favor of Gloria and her daughters.
In her petition, using mandatory California Judicial Council form EA-100, Laura requested that Debra be restrained from financially abusing Thomas, contacting him, being within 100 yards of him, being in his home, and making or facilitating any change to his estate plan.
Although Debra was served with the petition, she did not appear at the hearing on the restraining order and the court issued it.
Debra Wear Appeals, Mostly Unsuccessfully
In its opinion, the Court of Appeal provided an overview of the goals and provisions of California’s Elder Abuse Act. Welfare and Institutions Code section 15657.03, in particular, controls the issuance of protective orders.
Debra sought to invalidate the restraining order because she later disqualified the judge who issued it by means of a peremptory challenge under Code of Civil Procedure section 170.6. The appellate court declined to apply the peremptory challenge retroactively.
Debra also attacked the restraining order on the ground that the probate judge substantially amended the petition at the hearing, without notice to her. The appellate court, however, found that the probate judge appropriately had clarified the allegations to include mental suffering, harassment and intimidation because Laura had presented evidence of such claims.
The Court of Appeal, on the other hand, found that the probate judge improperly had added a firearms and ammunition restriction to the order because such a restriction requires evidence of physical abuse or mentally intimidating acts in excess of financial abuse.
Lastly, and most significantly, the appellate court rejected Debra’s argument that the 2020 estate planning change did not amount to financial elder abuse because she did not take anything from Thomas and instead supposedly helped him achieve his own estate planning objectives.
Quoting section 15657.03, the court observed: “The fact that [Debra] did not take, or possess, any of Thomas’s real or personal property is irrelevant” because elder abuse includes the taking of any property right “by means of . . . testamentary bequest, regardless of whether the property is held directly or by a representative of an elder.”
Takeaways
Elder abuse restraining orders are seldom appealed, leading to sparse case law on the subject. White v. Wear illuminates one potential use of such orders in extreme situations.
A restraining order may be appropriate and effective when even a conservatorship over an elder’s estate does not deter family members from attempting to change the elder’s estate plan without probate court approval.
Note that the California Legislature expanded Probate Code section 15657.03 by Assembly Bill 1243 in 2021. As we’ll discuss in a future post, AB 1243 will allow restraining orders targeting the isolation of an elder and also permit a probate court to find that a specific debt incurred by an elder was the product of financial elder abuse. The statutory change, however, won’t take effect until January 1, 2023, giving the Judicial Council time to update Form EA-100 and related forms.
White v. Wear and AB 1243 both point to expanded use of restraining orders in financial elder abuse litigation.
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