A Look Ahead: Navigating Trust Contests With Elder Financial Abuse Claims

Trusts & Estates partner Rodney Lee continues our series on Trust & Estate Litigation, discussing trends in trust contests and elder financial abuse matters. Rodney analyzes the increasing number of elder financial abuse claims tied to trust contests and their implications. He also discusses the potential impact of pending legislation on elder abuse claims and how legal counsel must strike a balance between the interpersonal and advocacy sides of trust and estate litigation matters.

Tell us about your practice and the types of trust and estate matters you generally handle.

I focus my practice on private wealth disputes, serving a diverse range of clients from high net worth individuals to athletes, entertainers and entrepreneurs. With over 15 years of experience in business, trusts and estates law, I guide clients through complex matters, achieving favorable outcomes in various dispute resolution settings. This includes matters such as estate, trust and fiduciary litigation, addressing issues such as undue influence, capacity, fiduciary breaches and elder abuse. 

What emerging trends are you witnessing related to elder financial abuse and trust contest matters? How have these trends altered the legal approach to these types of matters?

One emerging trend is the increasing combination of elder financial abuse claims with trust contests. Previously, trust contests focused on issues such as fraud or lack of capacity in estate planning instruments. However, elder abuse claims are now being alleged along with trust contests despite the underlying facts being virtually identical. A potential reason for this trend is that certain elder financial abuse claims may be entitled to a jury trial, while trust contests are typically decided by a bench trial.

This shift is also significant with respect to the remedies afforded to claimants. Elder financial abuse claims afford parties with the ability to seek the recovery of their reasonable attorney fees and costs, further altering the landscape of trust contests. Seasoned trust and estate litigators must now thoroughly assess each case to determine the potential for a jury trial and the implications associated with the inclusion of an elder financial abuse claim. This trend has led to a more complex legal landscape in the space, with both sides potentially facing significant financial repercussions if the case is taken to trial.

Are there any new or evolving legal regulations to prevent elder financial abuse and address trust disputes?

One notable development is an assembly bill in California seeking to lower the age threshold for elders as defined in the penal code when it comes to individuals who are subjected to physical or mental abuse. Currently, elder abuse in this context involves causing physical or mental pain to individuals aged 65 and above, while elder financial abuse pertains to the theft of funds from the same age group. The proposed change aims to lower this age to 60 for physical or mental abuse. If this happens, it is likely that the age threshold for elder financial abuse will also lower to 60, given that these laws are all predicated on the assumption that individuals in this age demographic are in need of extra protection.  

This shift is concerning because people are living longer, more active lives, which doesn’t necessarily align with lowering the age threshold. With individuals staying healthier and working longer, the proposed change may not reflect the current societal landscape.

How do you balance these interpersonal complexities while advocating for your clients in trust and estate litigation matters?

In most trusts and estates matters, attorneys are constantly immersed in a variety of family dynamics. So one key strategy is to compartmentalize the interpersonal aspects of the legal work. I often find myself playing the role of a therapist. When clients want to vent, it’s important to let them get it out. Doing so enables you to ensure that every client feels heard and understood without being dismissive. The challenge is balancing the emotional needs of your client with the work that needs to be done to win your case.

It can be a fine line to walk, but I believe our Trust & Estate Litigation group does a great job of this, and it’s shown in the trust that our clients have placed in us for decades. While our primary focus is on advocating and advancing their interests, we also know how to address their emotional needs and we partner with them to navigate a sometimes tumultuous time in their lives. This requires being attuned to their concerns and adjusting our approach accordingly.

As clients navigate these complex matters, what is top of mind for them and how can legal counsel best support their needs?

Clients are often concerned about protecting estate plans and avoiding litigation issues. To best support their needs, legal counsel must prioritize a few key considerations.

First, it’s important to hire seasoned legal counsel who knows how to provide comprehensive guidance, understand concerns and strategize an approach to safeguard the estate plan. This involves not only crafting a solid strategy but also anticipating potential litigation pitfalls. Counsel should assess whether the estate plan could be perceived as unfair or invite litigation down the line, and take steps to mitigate these risks accordingly.

Moreover, with the rising costs of litigation, clients are increasingly mindful of the financial implications associated with litigating their cases. From court fees to technology-related expenses such as electronic discovery, the costs of navigating such cases have increased dramatically. This is partly due to the wealth of information and digital footprint we as a society have now. Even trusts and estates disputes, which historically were not document-heavy, are now inundated with communication records, particularly emails, that can be subject to discovery. This expansion of the case due to technological advancements underscores the need for legal counsel to navigate these cases more efficiently.

By providing comprehensive support that addresses both present legal concerns and potential future challenges, counsel can best serve the needs of their clients by navigating these intricate matters.

How is Loeb a leader in the space?

Trust and estate litigation is a specialized area that requires experienced lawyers who understand probate law. In combination with a strong, broader trusts and estates practice, Loeb distinguishes itself as a leader by maintaining a focused approach to trust and estate litigation, unlike general civil litigators who cover a wide array of legal areas. Our group is also deeply connected with leaders in the space, which further expands our knowledge and allows us to remain at the forefront of industry developments. Drawing from over two decades of specialized experience, we have a rich history of representing a substantial portion of high net worth individuals, affording us unmatched insight into addressing their distinct requirements and adeptly navigating intricate challenges. 

Furthermore, while some firms may have downsized their trusts and estates departments, we have continued to thrive and expand. This growth is a testament to the strength of our group and our reputation as trailblazers within the industry.