FILIPINO CAREGIVER GETS 60% OF TRUST ESTATE (ABOUT $840,000.00) OF DECEASED JEWISH EMPLOYER
By:
Roman P. Mosqueda, Esq.
After a whole-day mediation on August 29, 2007, conducted by Retired Los Angeles Probate Judge Arnold H. Gold of the Alternative Resolution Centers in West Los Angeles, a Filipino caretaker and the other claimants, American Red Cross (National and Los Angeles Chapter), to The Goddard Trust agreed to divide the Trust residue as follows:
60% to the Filipino caregiver; and
40% to the American Red Cross (National and Los Angeles Chapter).
The Trustee’s (Bank of America, N.A.) attorneys, Stindt & Persoff, estimate the Trust estate, consisting of bonds, stocks, and a residential house just sold for $725,000.00, at $1,543,321.00, of which $61,500.00 are gifts to other beneficiaries, and the balance subject to reductions for administrative expenses, commissions, and renovation costs.
This Author represents the Filipino caregiver, whose name is withheld to protect his privacy, considering the large gift given to him by the deceased Edith Goddard, a Jewish employer, who died on August 23, 2006, at 99 years old. Per Settlement Agreement and Mutual Release signed by the claimants at the mediation, the Filipino caregiver would get 60% of the Trust residue estimated presently at about $840,000.00.
The other claimants, American Red Cross and the American Red Cross, Greater Los Angeles Chapter, are represented by the Law Offices of Poindexter & Doutré, Inc., through Robert D. Schwartz, Esq., who incidentally is married to a Filipina wife from Hawaii. The American Red Cross contested the gift to the Filipino caregiver as invalid because of undue influence.
The Goddard Trust:
Settlors (or Trustors) Walter E. Goddard and Edith Ilse Goddard established the Goddard Trust on October 02, 1997, as an inter vivos, revocable trust.
Trustor Walter Goddard died first on November 09, 2001. Survivor Trustor Edith Goddard made four (4) amendments to the Goddard Trust, to wit:
(1) First Trust Amendment dated December 18, 2001, named Bank of America as successor trustee and provided a $500.00 gift to the Filipino caregiver of Edith Goddard;
(2) Second Trust Amendment dated March 25, 2003, restated the trust, gave specific gifts to several persons, increased the gift to the Filipino caregiver to $5,000.00, and reaffirmed the charitable residuary disposition in the original Trust;
(3) Third Trust Amendment dated February 17, 2005, provided for two (2) bequests: a money ($23,000.00), jewelry and art books and objects as bequest to Ruth Jacobson, the sister of Edith Goddard, and a Normandy radio gift to Dr. Clifford Marshall; and
(4) Fourth Trust Amendment dated May 03, 2005, reiterated the special gifts to Ruth Jacobson and other persons named in the Second Amendment, but omitted some, and left the residue of the estate to the Filipino caregiver, who had been in the employ of Edith Goddard since the death of Walter Goddard and had treated her “like a loving son;” if he was in Edith Goddard’s employ immediately before her death; otherwise, the residue was to be split equally between the American Red Cross, Los Angeles Chapter, and the National American Red Cross, Washington, D.C.
Presumption Of Invalidity
Of Gift To Caregiver:
Under Section 21350(a)(6) of the California Probate Code (legislation enacted in 1997), any donative transfer or gift by a dependent adult to his/her care custodian is invalid, to protect the giver from fraud, menace, duress or undue influence.
Relevant exceptions to the presumption of invalidity are as follows:
(1) A certificate of independent review by an attorney who counsels the client (transferor) about the nature and consequences of the intended transfer and attempts to determine if there was fraud, menace, duress or undue influence, per Section 21351(a) of the Probate Code; and
(2) Finding upon clear and convincing evidence, by a probate judge at a hearing that there was no fraud, menace, duress or undue influence exerted on the dependent adult for the transfer or gift to the caretaker, per Section 21351(d) of the Probate Code.
The transfer or gift may be given outright in cash or check or the physical object or the use thereof, during the giver’s lifetime, or in his/her trust instrument or will, effective immediately, upon his/her death, or some other time.
In whatever form or manner the transfer or gift is given, the presumption of invalidity attaches, unless overcome by the exceptions stated above.
Lack Of Fraud, Menace, Duress
Or Undue Influence In Residuary
Gift To Filipino Caregiver:
A. Mediation Of The Issue On Residual Gift Validity:
The Hon. Mitchell Beckloff, Presiding Commissioner of Department 5 of the Superior Court of the State of California, for the County of Los Angeles, Central District, ruled on May 24, 2007, that the Certificate of Independent Review did not satisfy the requirements of Probate Code Section 21351(b), because Ms. Chan was the attorney who drafted the Fourth Amendment to the Trust.
And the Court found that there remains to be determined the issues presented by Probate Code Section 21351(d), that is, the Court’s determination, upon clear and convincing evidence, but not based solely upon the testimony of the caregiver, that the transfer was not the product of fraud, menace, duress or undue influence. See Bernard v. Foley, (2006) 39 Cal. 4th 794.
The parties had agreed to mediate before conducting such an evidentiary hearing on the validity of the residuary gift to the Filipino caregiver.
B. Evidence On Validity Of Residuary Gift:
1. The Fourth Trust Amendment Itself: Page 6 of the notarized Fourth Trust Amendment (page 67 of the Petition For Instructions And For Determination Of Entitlement To Distribution filed by Trustee Bank of America, N.A., dated February 01, 2007), states the reasons by Edith Goddard gave the residue of the Trust estate to the Filipino caregiver, to wit: “(He) has been in my employ since my husband died and has treated me like a loving son.”
These were the definitive reasons given by Edith Goddard herself for giving the residue of her Trust estate to the Filipino caregiver. The gift was not a product of fraud, menace, duress, or even undue influence. Her written wishes and reasons therefor should be respected.
2. Deposition Testimonies Of Witnesses: This Author took the depositions of Sandra J. Chan, Esq., who essentially stated that she discussed the residue gift to the Filipino caregiver with Edith Goddard and the effect of wiping out the gift to American Red Cross. And that was what she wanted.
The deposition of a long-term neighbor, Jewish friend, and weekly visitor, Irene Janet Reingold, was also taken by this Author. She essentially said that she mentioned to Edith Goddard some Jewish charities, large Jewish charities, but she shook her head; and said it wasn’t what she wanted. She wanted to give her trust residue to the Filipino caregiver.
Lastly, this Author took the deposition of Dr. Allan R. Morrison, the primary physician of Edith Goddard. He testified essentially that: Edith Goddard had no neurological problems; she was alert and oriented; her confused feeling for two (2) weeks might have been due to Ambien; he has no memory of Mrs. Goddard exhibiting signs of memory impairment.
Indeed, for undue influence to exist, the free will of the testator or trustor must be “completely overborne” by the pressure of the influence, causing him or her to make a disposition not in accordance with his or her desires, per Hagen v. Hickenbottom (1996) 41 CA 4th 168, 182.
******
(The Author, Roman P. Mosqueda, has personally represented numerous Filipino and Filipina caregivers in overcoming the presumption of invalidity of the gift from their elderly employer.)