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Law Review

Carmel Bosco prepared a living trust leaving her assets to various relatives and close friends. She had no children. Ten years later, at 97 years of age, Carmel died leaving an estate valued at $448,000. Her relatives were surprised to learn that three days before her death her trust had been changed, directing all of her assets to James Foley and his girlfriend, Ann Erman, a longtime personal friends of Carmels. Foley and Erman had been caring for Carmel for a few months, even moving her into their home for two months after she was diagnosed with lung cancer.

The disinherited relatives and close friends challenged the trust, claiming Foley and Erman unduly influenced Carmel. They claimed the pair were care custodians under California law, notwithstanding their long-time friendship with the deceased, and therefore subject to higher scrutiny before they may inherit.

The California Probate Code lists seven categories of people who cannot validly inherit under wills. The list includes the person who drafted the will, any law firms, lawyers and employees of law firms that are associated with the will drafting, and care custodians of the dependent adult who left the inheritance. Those persons (courtspeak for people) are presumed to have unduly influenced the deceased.Those disqualified persons, including care custodians, may inherit if they can prove by clear and convincing evidence that the transfer to them was not the product of fraud, menace, duress, or undue influence.The question in this case hinged on whether Foley and Erman were care custodians.Care custodian is defined to include approximately 20 different agencies, but also includes any person providing health care services or social services to elders or dependent adults. Foley and Erman claimed they were assisting their good friend Carmel due to their long-standing relationships, and that nonpaid, helping friends should not be considered paid caregivers and disqualified from inheriting. (They didnt explain why, if they were such good friends, they took 97year-old Carmel to a lawyer and had her trust changed three days before she died.)

The trial court agreed with Foley and Erman. They were helping as friends not care custodians. The Court of Appeal reversed. The Supreme Court agreed with the Court of Appeal, writing that a caregiver may be a personal friend, and in fact personal friends are uniquely in a position to unduly influence the elderly for whom they care. Foley and Erman lose. I wholeheartedly agree.

Chief Justice George agreed with the majority; however, he suggested that the legislature would do well to amend the law to differentiate between longterm caregivers and those who provide care for short periods of time, like Foley and Erman. He suggested non-paid helpers providing care for more than one year should not be presumed to have unduly influenced the deceased. How bout three years?The three justices who dissented showed little interest in rewarding Foley and Erman, but concluded that the law disallowing care custodians from inheriting applied only to paid care custodians, not personal friends doing an old lady a favor. Kind people are hard to come by wrote new Justice Corrigan.This is a good case. Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. Reach him at or at the firms Web site

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