Trusts and Estates

Elizabeth Levin v. Debra Winston-Levin

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Cite as G056353
Filed September 13, 2019
California Court of Appeal, Third District

By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP

Headnote:  Trusts and Estates – Undue Influence – Double Damages

Summary:  A finding of bad faith is a prerequisite to an award of double damages under Probate Code section 859 based on a theory of undue influence.

Robert Levin amended his trust at various times before his death in 2015, including in 2008 and 2012.  The latter amendments largely benefited his surviving spouse, Debra, at the expense of his daughter from a prior marriage, Elizabeth.  Elizabeth sued to invalidate those amendments on the grounds that they were procured as a result of Debra’s undue influence, and sought an order to compel Debra to return property distributed to her under the disputed 2012 amendment and for double damages under Probate Code section 859.  The court found that Debra failed to rebut the presumption of undue influence, as it applied to the 2012 amendment, given Robert’s significant mental decline by that point of time.  The court invalidated that amendment, and ordered Debra to return to the trust property that she had obtained under that amendment and a related deed.  The court found that Robert had executed the 2008 amendment of his own free will and volition.  Elizabeth appealed.  She contended that the court erred by not awarding double damages under the elder abuse statutes given the finding of undue influence, by upholding the validity of the 2008 amendment, and by voiding the entire 2012 amendment instead of just those portions that benefited Debra.

Affirmed.  Double damages under Probate Code section 859 are available in undue influence cases only when the court finds bad faith.  Although undue influence may give rise to liability for financial elder abuse, which provides enhanced remedies, double damages under section 859 require an additional showing of bad faith.  Not all instances of undue influence entail bad faith.  The court acknowledged the ambivalence of the relevant statutes but concluded that because all other bases for double damages under section 859 require bad faith, double damages for elder abuse based on undue influence also required bad faith.  The court also held that the entire 2012 amendment was tainted by undue influence, and it would be impossible to invalidate only the portions benefiting Debra without upending Robert’s well-established testamentary intent to strike a balance between his wife and his daughter.  Finally, substantial evidence existed to support the court’s findings as to the validity of the 2008 amendment.

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