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LA Probate & Trust Litigation | Fighting Yesterday's Playbook

By Mike Hackard of Hackard Law posted in Trust Litigation on Friday, January 20, 2017.

Innovation can be splendidly disruptive. Uber, Tesla and iPhone are examples of disruptive innovation that gave birth to different strategies in overcoming incumbent businesses. State Attorneys' General litigation against tobacco companies was disruptive and gave Big Tobacco a major problem in mounting an effective defense. Ultimately Big Tobacco settled, and, as they say, the rest is history.

While estate undue influencers and perpetrators of elder financial abuse are not Big Tobacco, it is not unusual for them to mount a "smoke and mirrors" defense. Hackard Law represents Los Angeles-area clients that have been left behind in estates and trusts as a result of the wrongful conduct of another. We litigate in the civil courts where our clients can secure a jury trial, and we litigate in the Stanley Mosk Probate Court when law and procedure dictate.

When we launch probate litigation action in Los Angeles County, respondents or defendants are duly served with court papers. It isn't long before we receive a communication from a trust lawyer or defense lawyer. The letters' thematic approach and dire warnings are similar. I've listed a few responses that are generally indicative of how trust defense lawyers initially approach their task of deflecting facts that point to wrongdoing:

· Nothing can be wrong with this trust because the estate-planning attorney indicates that Decedent had capacity at the time he executed the Trust.

· The estate-planning attorney says that there is no doubt that the defendant did not unduly influence the Decedent.

· The estate planning attorney's testimony along with neighbors, family and friends will prove that Decedent had capacity and he was not subject to undue influence.

· The lawsuit for elder financial abuse is a nuisance suit designed to force the trustee to pay for his own counsel because the suit itself has absolutely no merit.

· Hackard Law's client has absolutely no proof of the allegations she made against her brother. In fact, Defendant brother is considering taking action against his sister for filing such defamatory actions against him under penalty of perjury.

· The Hackard Law pleading is "woefully inadequate on its face, the 'evidence' on which it purports to rely does not exist."

· The pleading has "no merit" and is "inadequate." The evidence is "conclusive" and "overwhelming" that not only is the Trust valid but also that there was never elder abuse of any kind.

· The defendant "had an extremely close and loving relationship" and he only took care of his mother "out of the goodness of his heart."

· Hackard Law's client has "violated the no-contest clause" and the client lacks probable cause to file the pleading.

· Hackard Law's client "will therefore take nothing under the Trust, nor will any other designated beneficiary, including any contingent beneficiary, that acted with her either directly or indirectly."

Now we get to defense-speak when it comes to settlement:

· This is a "one-time settlement offer in an effort to conclude this matter before time and money is wasted on your client's frivolous and unsubstantiated claims."

· If your client doesn't accept this offer "my client will pursue all remedies against your client including enforcement of the no contest clause and pursuit of a malicious prosecution claim for filing the trust contest without reasonable cause."

· Your pleadings "merely contain recycled generic allegations without any substance of supporting facts."

· My client is "outraged at the accusations" made by her brother.

The above language is a fair sampling of the many defense letters that we receive on a regular basis. The defense playbook is predictable - the decedent had capacity; everything that we allege has no merit; you better watch out - the no-contest clause and a malicious prosecution action are coming; and any abnormal changes in the estate plan are a result of the very close and loving relationship between the decedent and the alleged estate wrongdoer.

We expect the old playbook, and we further expect that we will make every diligent effort to make a wrongdoer accountable. Conduct rewarded is conduct repeated. The bottom line is that the bluster of "defense-speak" does not work with us.

We take cases that we believe in. We have a strong belief that those who commit financial crimes against an elderly person's funds, property or assets should be held accountable. The public policies supporting enhanced protections for the elderly in Los Angeles and throughout California are creating a new playbook - not one tied to tired old defenses of bad conduct, but one that allows a jury to focus on the vulnerability of elders and damages against wrongdoers who commit bad acts. It's that simple.

If you're in Los Angeles and are wondering what to do about a trust or estate dispute that could involve elder financial abuse, call us at Hackard Law. We're committed to protecting our clients and preventing any further harm. You can reach us at 213-357-5200, and we look forward to speaking with you. Thank you.

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