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Gail Hermann et al v. Darcy Taylor

April 19, 2012

GAIL HERMANN ET AL., PLAINTIFFS AND APPELLANTS,
v.
DARCY TAYLOR, DEFENDANT AND RESPONDENT.



(Super. Ct. No. SPR 4929)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Hermann v. Taylor

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs challenge the trial court's denial of their petition to set aside a testamentary trust amendment as procured by defendant's undue influence. We conclude substantial evidence supports the trial court's finding of no undue influence, and we affirm the judgment.

FACTS*fn1

Jane and Ted Hermann married in the early 1950s. Ted had three children from a prior marriage: James, Randall, and Karen. Jane and Ted raised two sons in their marriage: Gail, and Rand, who is also known as Buzz. Buzz has two daughters, Darcy and Jamie.

Jane and Ted divorced in late 1996 or early 1997, but they remarried in 1999. In the mid 1990's, Jane was treated for alcohol abuse at the Betty Ford Center. Jane and Ted had a history of alcohol abuse. Within two days of leaving the Betty Ford Center, Jane began drinking again on a daily basis.

In 2000, and at the age of 79, Jane created the Jane D. Hermann Living Trust. The trust named son Gail and granddaughter Darcy as cobeneficiaries. Each would receive 50 percent of Jane's estate upon her death. The trust specifically disinherited son Buzz (Darcy's father), stepsons James and Randall, and granddaughter Jamie (Darcy's sister). It said nothing about stepdaughter Karen, and made no bequest to husband Ted.

At the time, Jane was living in Rancho Mirage, Riverside County. In 2002, Jane had several accidents and falls. In 2003, she was diagnosed with cancer. Gail, acting then as trustee of the trust, arranged to have Jane move to Lincoln, Placer County, in December of 2003 so he could take care of her more easily.

Jane executed first and second amendments to the trust shortly before, and after she arrived at Lincoln, respectively. Neither amendment changed the beneficiaries. The second amendment, dated January 7, 2004, added Karen to the list of persons specifically disinherited.

By instrument dated October 11, 2004, Jane executed a third amendment to her trust. This amendment named granddaughter Darcy as the sole beneficiary to receive 100 percent of Jane's estate. It also named Darcy as the sole trustee. The amendment also added Gail to the list of persons specifically disinherited.

Jane died in Lincoln on August 26, 2007.

In December 2007, Gail and stepson James, in his capacity as conservator of Ted's estate, filed a petition in superior court to set aside the third amendment to the trust and for elder financial abuse against Darcy. They alleged the third amendment was the result of undue influence exerted by Darcy over Jane. They also alleged Darcy's conduct constituted elder financial abuse as described in Welfare and Institutions Code section 15657.

In April 2008, Buzz filed a separate petition for relief. He alleged the trust was the result of undue influence exerted by Darcy over Jane. He also alleged Jane was not competent when she created the ...


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