Facts

In 2004, Anna Fyfe executed a will leaving her entire estate to her closest living relatives. Then, in June of 2005, Mrs. Fyfe, at the age of ninety-one, fell in her home and suffered serious injuries leaving her wheelchair-bound and almost entirely bedridden. From that time on, Mrs. Fyfe required the services of a live-in caregiver.

In August 2005, Mrs. Fyfe's personal physician expressed the opinion that Mrs. Fyfe was suffering from dementia of the Alzheimer's type and was, at that point, not competent to handle her affairs. Also in Aug. of 2005, after firing both her long-time attorney and her personal physician, Mrs. Fyfe retained defendant to revise her estate plan. Initially, a draft trust was prepared that was substantially similar to Mrs. Fyfe's prior will. Then, a year passed, during which time Defendant had no contact with Mrs. Fyfe.

In April 2007, defendant met with Mrs. Fyfe at the latter's home. At that meeting, defendant was presented with a revised set of dispositive provisions for Mrs. Fyfe's trust written entirely in the hand of Mrs. Fyfe's caregiver. On April 30, 2007, Mrs. Fyfe executed a revocable living trust that disinherited almost all of her living relatives and which provided for, among other things, almost $1,000,000 in gifts of cash and personal property to Mrs. Fyfe's caregiver. No certificate of independent review was obtained. Additionally, after execution of the trust, defendant arranged for Mrs. Fyfe to be examined by a doctor in order to obtain an opinion regarding Mrs. Fyfe's testamentary capacity and freedom from undue influence. After examining Mrs. Fyfe, the doctor informed defendant that he was unable to form an opinion regarding Mrs. Fyfe's testamentary capacity of freedom from undue influence.

Plaintiff was subsequently appointed by the Marin County Superior Court as Mrs. Fyfe's conservator. In conjunction with her appointment, plaintiff was ordered by the Court to investigate the validity of Mrs. Fyfe's trust. Following her investigation, which indicated serious concerns regarding the trust's validity, plaintiff sought permission from the Court to revise the dispositive provisions of Mrs. Fyfe's trust. This request was opposed by the trust's successor trustee.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that defendant was negligent in failing to adequately document the facts and circumstances surrounding the execution of Mrs. Fyfe's trust. Plaintiff further contended that, as a result of defendant's negligence, Mrs. Fyfe, through her conservatorship estate, suffered damages in the form of the fees and costs of plaintiff's court-ordered investigation and the subsequent litigation with the successor trustee.

DEFENDANT'S CONTENTIONS:
Defendant contended that she was not negligent and that her negligence did not cause Mrs. Fyfe any damages. Defendant also contended that plaintiff's action was barred by the one-year statute of limitations in Code of Civil Procedure Section 340.6.

Settlement Discussions

A mediation was held on Feb. 22, 2011, with Kenneth Gack of JAMS serving as mediator. Defendant also served an offer pursuant to Code of Civil Procedure Section 998 in the amount of $25,000. The highest offer made by defendant was $80,000; the lowest demand made by plaintiff was $125,000.

Result

Award for plaintiff in the amount of $154,800.23, plus attorney fees and costs.

Other Information

FILING DATE: October 2009.