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In re Estate of Austin

September 15, 2010

ESTATE OF DONALD RICHARD AUSTIN, DECEASED.
DAWN MAREE AUSTIN, PETITIONER AND APPELLANT,
v.
DEBRA SIMPSON, OBJECTOR AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick, Judge. (Super. Ct. No. 08CEPR00377).

The opinion of the court was delivered by: Hill, J.

CERTIFIED FOR PUBLICATION

OPINION

Probate Code section 21350 invalidates certain donative transfers from a dependent adult to his or her care custodian for the protection of the dependent adult. Pursuant to that section, appellant sought to invalidate gifts given by decedent to respondent. The trial court concluded appellant failed to prove respondent was decedent's care custodian, and held the gifts were valid. Substantial evidence supports the trial court's findings, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Dawn Maree Austin (Dawn),*fn1 the daughter of decedent, Donald Richard Austin (Donald), apparently petitioned to be appointed the personal representative of Donald's estate.*fn2 Respondent, Debra Simpson (Debra), who is the daughter of Donald's former wife, filed an objection to that petition. The trial court ordered the Public Administrator to administer the estate. Questions arose regarding whether certain gifts Donald gave to Debra in the form of checks were invalid pursuant to provisions of the Probate Code. Debra turned over the funds from the checks to the Public Administrator pursuant to court order. The court conducted a trial and determined the gifts to Debra were valid. Dawn appeals.

Debra's mother, Geneva Simpson (Geneva), was married to Donald from 1986 to 1994. They divorced in 1994 "for Medi-Cal reasons," but continued to live together. Debra lived next door to them for 22 years. In 2006, Donald broke his hip, then had triple bypass surgery three weeks later. He was in a nursing home in November 2006 after his bypass surgery. He returned home, but when he was no longer able to take care of himself, he was placed in a nursing home. He remained in nursing homes until his death on December 23, 2007.

Prior to Donald's death, his mother passed away and his brother, Wesley Austin (Wesley) became successor trustee of her trust. In April or May 2007, Wesley and his wife, Janice (Janice), learned Donald would receive funds from that trust. They went to see Donald at the nursing home and asked what he wanted to do with the funds. On their third visit in three weeks, Donald had decided he wanted Debra to have the money. Wesley and Janice called Debra and asked her to come to the nursing home. Wesley handed the first check to Donald, who signed it, handed it to Debra, and said, "Here, this is yours." Wesley received the second check from the life insurance company; he took it to Donald, who signed it over to Debra and told Wesley to take it to her. Wesley delivered it to Debra personally. The remaining four checks were written by Donald to Debra, and Wesley and Janice had no knowledge of them. The six checks were dated between April 5 and July 10, 2007, and totaled approximately $185,000.

Dawn contends Debra was a "care custodian of a dependent adult" as that term is used in Probate Code section 21350, and is therefore a person disqualified from receiving a transfer of property from that dependent adult. On this basis, she contends the transfer of funds from Donald to Debra by means of the checks was invalid and the funds should become part of the probate estate.

DISCUSSION

Probate Code section 21350*fn3 invalidates donative transfers to certain disqualified persons. As relevant here, it provides:

"(a) Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: [¶] ... [¶] "(6) A care custodian of a dependent adult who is the transferor."

Section 21351 sets out exceptions to the invalidity provided for in section 21350. It ...


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