We represented one of three children of the Settlor, who created a Trust consisting of real property. The Trust distributed the property upon the death of the Settlor in equal shares to the three children.

The Settlor, who was the surviving mother of the three children, was seriously ill suffering from terminal cancer. She was living at a Nursing and Rehabilitation Center, and she spoke very little English. About a year after she knew that she was suffering from terminal cancer, she created the Trust and transferred the real property to the Trust.

Yet, two months after she made the trust transfer deed, she purportedly executed a Grant Deed transferring the real property to one of her children. She died about one year later.

We filed a Petition to set aside and cancel the grant deed transferring the real property on various grounds including Probate Code section 850(a)(3)(b)); Undue Influence; Financial Elder Abuse; Fraud; Imposition of Constructive trust. Our petition sought punitive damages as provided under Cal. Welfare and Institutions Code Section 15610.30, et seq. and Cal. Probate Code Section 850.

"Financial abuse" under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) occurs when a person or an entity: "Takes, secretes, appropriates, or retains real or personal property of an elder or a dependent adult for a wrongful use, with intent to defraud."

A person shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person takes, secretes, appropriates or retains possession of property in "bad faith."

The Settlor was an elder adult, as well as a dependent adult, who suffered from multiple physical and mental limitations which restricted her abilities to carry out normal activities or to adequately protect her rights. The son stood in a position of trust and had a fiduciary relationship with the Settlor by undertaking to allegedly assist the Settlor in managing her financial affairs.

When the Grant Deed was executed transferring the real property to the son, the Settlor was not represented by independent counsel, she was likely isolated and alone with her son, she was gravely ill, unable to speak, unable to understand English, on multiple prescription medication that impaired her mental abilities, and she had placed her trust in her son.

We argued that the case raises a presumption of constructive fraud and undue influence, and a presumption of financial elder abuse. The case also raised the issue of whether the Settlor was of "unsound mind" to execute the grant deed under Civil Code Section 39(b).

Under a claim for Financial Elder Abuse, a person who is liable for fiduciary abuse of a decedent may forfeit his or her right of inheritance. Prob.Code Section 259. Therefore, the son who committed the elder abuse would not be entitled to his one-third distribution of the Trust asset.

Moreover, a person committing elder abuse would be liable for treble damages, attorneys' fees and costs of suit.

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