New York Estate Planning & Elder Law Blog
In some situations, courts throughout the country are able to stop other individuals from altering an elderly individual’s estate plan.
In one recent case, White v. Wear, the appellate court considered the creation of a restraining order blocking the respondent from performing any alternatives to estate plans. The order might preempt estate planning changes and as a result, eliminate a further dispute over the estate planning document.
The man at the heart of the case established a corresponding trust several decades ago with the
intention that assets in the trust be passed on to the couple’s children. When the man’s wife passed away in 2002, the man segmented the trust into several sub-trusts. At the conclusion of 2005, the man’s estate was appraised at more than $40 million.
The man married another woman in 2007. The second wife had a couple of children from a
previous relationship. Both the man and woman married, owned significant assets, and signed marital contracts. By 2013, the man had substantial mental impairments that placed him in a position where he was vulnerable to undue influence.
The second wife interrupted the man’s relationship with his lawyer and prohibited him from speaking with his daughter. The wife even threw away photographs of the daughter at the house. The woman also prepared paperwork for the man where he displayed the wish to pass on approximately 3/4th of his assets to the woman and a quarter to charity.
Then, in 2015, the man’s daughter pursued a petition to nominate a conservator over the man’s person and estate. After the wife and daughter continued to pursue influence over the man to revise documents related to the man’s estate plan, the daughter received a restraining order against the woman that prohibited her from utilizing the man’s estate plan.
Later, a court awarded a conservator over Thomas’s estate and named a fiduciary as a conservator. Litigation continued despite the conservatorship.
In the spring of 2020, one of the man’s daughters pursued a restraining order against the wife as well as a few other people. The daughter’s petition requested that the daughter be restrained from financially abusing the father. Even though the wife received the petition, she never appeared at the hearing and the court issued a restraining order.
Lessons Learned from This Case
Restraining orders in an elder abuse setting are rarely appealed, which means there’s very little law on the subject. This case highlights one-way orders that can be utilized in the most serious cases. Restraining orders might be adequate even if a conservatorship over an elder’s estate does not prevent relatives from changing a senior citizen’s estate plan regardless of the probate court’s approval.
Legislature in California increased its Probate Code in 2021. California’s new assembly bill permits restraining orders to isolate elders and also allows the court to locate specific debts incurred by elders who are subject to elder abuse. This change does not become effective until the beginning of 2023, though.