Deadbeat Dad Can’t Use Last Mom’s Last Minute Will Change to Escape Payment to Ex-Wife:
CALIFORNIA COURT USES CONSTRUCTIVE TRUST THEORY TO DEFEAT LAST MINUTE WILL CHANGE BY MOTHER INTENDED TO HELP SON AVOID CHILD SUPPORT LIEN ON HIS INHERITANCE.
In an interesting opinion that could have implications in Florida, a California Appellate Court recently used the legal remedy of a constructive trust to allow a testator’s ex-wife to sue her ex-husband and his sister after they allegedly coerced their mother into changing her will just prior to her death, to give to her daughter the share of the estate given to her son in a prior will so that he could avoid child support obligations.
In Cabral v. Soares, 69 Cal.Rptr.3d 242 (Ct.App.2007) Tammy Cabral, the Plaintiff, filed a Complaint alleging that as of November 2005 her ex-husband James was delinquent in paying court-ordered spousal and child support in the approximate amount of $134,000 and that since 1998 he had “on several occasions been found in contempt” for the failure to pay his support obligations. The complaint alleged that James had taken various steps to avoid enforcement of the support obligations, including “not having a regular job with wages . . . and working in a way that he would be paid in a manner that prevented the plaintiff from enforcing the support obligations.” The complaint alleged, “Until shortly before her death, the will of Edwina Cabral provided that her three children would each receive a one-third interest in her estate,” which included the family home in Newark, California with a free and clear market value in excess of $500,000 so that James “would have received enough money to pay the past-due support obligations in full.” ” Tammy sued Mary Soares and James E. Cabral, who she alleged realized that the one-third interest of James E. Cabral would end up getting used to paying the past-due support owed to the plaintiff. In order to prevent that from happening, those defendants, according to Plaintiff, conspired and agreed to have the will modified shortly before Edwina Cabral died. The modification was to have the one-third interest of James E. Cabral instead get paid to Mary Soares so that she would end up with a two-thirds interest. Plaintiff alleged that the intent of this arrangement . . . was that Mary Soares would take the one-third interest of James E. Cabral, that Mary Soares would then hold that money, and that Mary Soares would then later get that money to James E. Cabral in a manner to prevent the plaintiff from receiving it for the past-due support obligations.”
The complaint further alleged that Edwina’s will was so modified on May 10, 2005 (with a bequest to James of “the paltry sum of $1,000”), that Edwina died less than two months later. Finally, the Complaint alleged that “the last-minute change in the will of Edwina Cabral very shortly before her death was probably done at a time when Edwina Cabral was not aware of what she was doing, was not mentally competent, was subject to undue influence by Mary Soares and James E. Cabral, and was not the true expression of her intent since she had always previously expressed that she wanted to leave her estate to her three children in equal shares of one-third each. The change was therefore not really a knowing and intelligent change by Edwina Cabral but was a manipulation by Mary Soares and James E. Cabral. Alternatively, the Complaint alleged that “if Edwina Cabral was aware of what was being done, then she also was doing it for the purpose of defrauding plaintiff and of manufacturing a charade to have the money go to James E. Cabral through Mary Soares in a way that was designed to keep the plaintiff from being paid what the court ordered James E. Cabral to pay for support.”
Tammy Cabral sued her former husband, James Cabral, and his sister, the executrix of Edwina Cabral’s estate, under five different legal theories: (1) the last-minute change to the will of Edwina Cabral” was a fraudulent transfer within the meaning of the California Uniform Fraudulent Transfer Act; (2) the family home should be held in a constructive trust for plaintiff’s benefit up until and to the extent required to pay the past-due support obligations in full; (3)the property should be held in a resulting trust; (4) declaratory relief as to the rights and liabilities of the parties, including the rights of the plaintiff to be paid from the one-third interest that James E. Cabral has in the estate and the property; (5) conspiracy.
The trial court dismissed Tammy Cabral’s claims, explaining that her action constituted a will contest and must be brought in probate court before she could bring her claims sounding in tort.
The ruling was appealed and the California Appeals Court for the First Appellate District reversed the trial court. In its opinion, the Appellate court highlighted that there was a domestic relations court order which had been previously entered in earlier proceedings. That Court order The court assigned to the plaintiff “until such time as the judgment herein is fully satisfied or this order is amended” “[a]ll rights to a payment that [James] has from any third party” including “any right to payment that [James] may have now or in the future from Mary Soares or from Joseph Cabral or from any other source that relates to the will of Edwina Cabral, the estate of Edwina Cabral, and/or any assets or funds from the will and/or estate of Edwina Cabral.”
The domestic relations, or sometimes called a family court, court-ordered assignment, and the alleged agreement between the Decedent and her two children to change the will in an effort to avoid the court-ordered assignment of inheritance funds to the plaintiff, served as the logical predicate for the California Appeals court to conclude that plaintiff could proceed under a constructive trust theory. The court held that plaintiff could request that the trial court impose a constructive trust on one-half of what Mary receives under Edwina’s will, that is, upon the one-third of Edwina’s estate received by Mary that allegedly was intended for James.
In the view of the California Appeals Court, what was significant was that James and Mary allegedly were parties to an agreement, and that Mary and Edwina so agreed and that Edwina allegedly changed her will in reliance on that agreement. Quoting Bogert, the California Court held that “[W]here A is induced to make a will in favor of B . . . by the oral promise of B to hold for C, the courts are nearly unanimous in England in decreeing that B must hold in trust for C, and the same is true as to the courts of the United States.” (Bogert, Trusts and Trustees (2007) Constructive Trusts, § 499, fns. & italics omitted.)”
This is also the rule in Florida. Florida Courts have consistently held that a constructive trust will arise by operation of law against one who, by actual or constructive fraud, by duress or abuse of confidence, by mistake, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, has acquired the legal right to a property he or she ought not, under equitable principles, hold and enjoy. Picallo v. Picallo, 443 So. 2d 190 (Fla. Dist. Ct. App. 3d Dist. 1983); Turturro v. Schmier, 374 So. 2d 71 (Fla. Dist. Ct. App. 3d Dist. 1979); Staples v. Battisti, 191 So. 2d 583 (Fla. Dist. Ct. App. 3d Dist. 1966); Small Business Admin. v. Echevarria, 864 F. Supp. 1254 (S.D. Fla. 1994).
Further, in Florida, Tammy Cabral may in fact have been able to bring a direct challenge to the last minute will. The California Court suggested that the will of Edwina Cabral that was in effect until the change just before her death provided that her three children would each receive a one-third interest in her estate, which included the family home so that James would have received enough money to pay the past-due support owed to the plaintiff. Depending on the exact language of the will, it may well be found that Tammy Cabral was a prior beneficiary under the prior will who would be able to bring a direct challenge to the will admitted to probate, even though she was not specifically mentioned in the challenged will, and was not a blood relative of Edwina Cabral.
The Florida Probate Code’s definition of “interested person” would probably include Tammy Cabral. “Interested persons” can participate in probate proceedings and are defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Fla. Stat. § 731.201(21). Also, it is possible that Tammy Cabral, under Florida law, and under the circumstances presented in the California opinion, could achieve a favorable result by challenging only the gift provision of the last minute will, thereby leaving the revocation clause in effect. This is because of Fla.Stat. § 732.5165 provides that “a will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so be procured shall be valid if it is not invalid for other reasons.” Thus, under Florida law, Tammy Cabral’s successful challenge of only the gift provisions of the last minute will, leaving the revocation clause in effect, would have the effect of revoking all prior wills and forcing Elwina Cabral’s estate to pass by intestacy. Since James would take 1/3 of Edwina’s estate under the laws of intestacy, James would receive the inheritance that was subject to assignment and attachment under the prior domestic relations child support obligation order. See generally, Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005).