CALIFORNIA TRUSTS AND ESTATES QUARTERLY RUMORS OF THEIR DEATH ARE GREATLY EXAGGERATED: THE PRE-DEATH WILL CONTEST AND OTHER STRATEGIES IN CONSERVATORSHIP LITIGATION

By Adam F. Streisand^*

It is an ever increasing phenomenon. Advances in medicine and generally more healthy lifestyles are contributing to the aging of our population. And increasingly, our bodies outpace our minds. More often we confront the Ronald Reagan syndrome: physically able but mentally departed. The phenomenon will no doubt continue exponentially. After all, the baby boomers are turning a young 60. California is already home to the greatest number of elderly in the country. Predictions are that the number of Californians over the age of 65 will double by 2020. Add to this mix that we divorce more, that we may have multiple marriages and children from more than one relationship, as well as a general, societal attitude that makes us more willing to air our grievances publicly in the courtroom. We are more litigious. It is a combustible combination.

So it is that we see in our courts on an ever increasing basis litigation on a new battle front. While I do not mean to suggest that we are wanting for cases over decedents’ estates or their trusts, probate litigators find themselves increasingly in court in conservatorship matters. This article discusses various strategies for litigating disputes in conservatorship proceedings, including pre-death will and trust contests, civil actions for fraud and undue influence, proceedings to recover misappropriated assets, enhanced remedies for elder abuse, and litigation over marital property and the rights of non-marital partners in the conservatee’s assets.

There is a noble cause in conservatorship litigation. The elderly are among our most vulnerable citizens and conservatorships are often the best means for protecting them. It is equally true that the conservatee’s beneficiaries may be innocent victims of avaricious elder abusers. To redress these wrongs is to protect the conservatee and the integrity of her true intentions. Unfortunately, conservatorship law is in its infancy relative to the need for procedural and substantive means to litigate these cases. This article discusses strategies that are at the cutting edge of conservatorship law.