$326,588 Award Went Bye-Bye.
Plaintiffs in an elder abuse case where the crucial claims centered about defendants’ undue influence of an elder, causing an amendment to a testamentary trust, fared well in the trial court. The lower court invalidated the trust and awarded plaintiffs attorney’s fees of $326,588 under Welfare & Institutions Code section 15657(a) (an Elder Abuse Act fee-shifting provision).
On appeal, in McIntosh v. Mathison, Case No. A127421 (1st Dist., Div. 3 Apr. 25, 2011) (unpublished), the fee award was reversed.
The reason? The Elder Financial Abuse Act’s financial elder abuse sections were amended in 2008 to add undue influence as a violation such that the fee shifting provision applied only if retroactive in nature. Because the 2008 amendments were substantive and nothing indicated an intent that they were to apply to past conduct (the undue influence found here), the fee award had to be vacated — or, in one of our pet terms, went POOF!