The law is deeply conflicted when it comes to whether to
respect gifts made by vulnerable “dependent adults”. These are adults who are either unable to
take care of himself or are susceptible to undue influence (especially anyone
over age 65 years old).
On the one hand, the law presumes that gifts by dependant
adults either to “disqualified persons” or to their unrelated care custodian
(who receives payment for services) are the result of fraud, undue influence or
duress, and thus invalid. On the other
hand, the law protects the right of dependant adults to make such gifts that if
a certificate of independent review is obtained from an attorney who reviews
The certificate is the written assurance of the reviewing attorney
that the legal instrument used to make the gift (often a will or trust) is not
the product of undue influence, fraud or duress forced upon the dependant adult
by the beneficiary. But is a certificate
always accepted at face value or can it be still successfully challenged so
that the presumption of abuse is restored?
A certificate of independent review is only as reliable and
effective as the quality of the underlying review that is conducted by the independent
attorney who signed the certificate. In Estate of Winans (183 Cal App 4th
182) the court confirmed that a certificate does not have to be accepted at
face value. Thus a certificate of
independent review may be successfully challenged by the unhappy family of the
dependant adult. The court agreed that
an evidentiary trial was justified based on the facts and circumstances
surrounding the issuance of the certificate.
This certificate was exposed as the product of an inadequate and superficial
review by the reviewing attorney who stood to gain by approving the gift. So what kind of review is needed for the
certificate to be respected?
First, the reviewing attorney must be independent of the
beneficiary of the gift and may not stand to gain from the outcome. Specifically, the reviewing attorney cannot
have any, “legal, business, financial, professional or personal relationship
with the beneficiary”. Each such relationship
is an impermissible conflict of interest and raises the possibility that the
reviewing attorney is partial towards the beneficiary, and is not independent. Nor
may the attorney have a self interest such as being appointed to act as the
executor or successor trustee under the dependant adult’s will or trust in
Second, the reviewing attorney should explain to the
dependant adult that the gift he or she is making to the disqualified person or
care custodian is presumed to be invalid.
And, also explain how that presumption may be overcome through the certificate
of independent review procedure.
Third, the reviewing attorney should then review the legal document
in question with the dependant adult and ensure that the client understands
that the gift is irrevocable and understands the consequences. During their meeting the reviewing attorney
should take careful notes which may later become evidence that a thorough and
complete discussion regarding all the relevant issues occurred.
Fourth, the reviewing attorney might also enquire of third
parties to hear what they have to say regarding the nature of the beneficiary’s
relationship with the dependent adult.
This means contacting the dependent adult’s family and friends, as
In sum, a certificate of independent review does not have to
be accepted at face value. Whether the
certificate works depends on whether or not an independent attorney properly
reviewed the matter (for the presence of fraud, undue influence and duress) and
properly counseled the dependent adult.
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