AB 354 (2011) — Double Damages for Undue Influence and Financial Abuse (Superseded)

← Back to Articles & Developments  |  Bill text below is the enrolled text as passed in 2011 and is reproduced for historical reference.

What this bill didAB 354 (Silva) is the amendment that first brought undue influence and financial elder abuse into Probate Code section 859. Before it, the double damages remedy reached only a bad faith wrongful taking of property belonging to the estate of a decedent, a conservatee, a minor or a trust. AB 354 added a second trigger: property taken, concealed or disposed of by the use of undue influence in bad faith, or through the commission of elder or dependent adult financial abuse as defined in Welf. & Inst. Code section 15610.30. The bill was sponsored by the Conference of California Bar Associations and passed both houses without a dissenting vote.

Superseded — do not rely on the text below as current lawChaptered as Stats. 2011, Ch. 55, effective January 1, 2012. Probate Code section 859 was amended again two years later by AB 381 (Stats. 2013, Ch. 99), effective January 1, 2014. The section as it reads today is materially different from the version enacted by AB 354. This page preserves the 2011 text for reference where the earlier version of the statute is at issue; for the operative statute, see the Relevant Statutes page or AB 381.

What changed after 2011AB 381 made three substantive changes to the text AB 354 produced. It added an elder and a dependent adult to the list of persons whose property is protected, so the section no longer reaches only property of a decedent’s estate, a conservatee, a minor or a trust. It added the discretionary award of reasonable attorney’s fees and costs, which AB 354’s version did not contain at all. And it broadened the closing sentence, which under AB 354 preserved other remedies only for a trustee, guardian, conservator or personal representative, to preserve them for any person authorized to bring an action under the part.

A drafting point worth notingAs introduced on February 10, 2011, the bill would have reached property taken through the commission of elder or dependent adult abuse generally, defined by reference to the whole of the Elder Abuse and Dependent Adult Civil Protection Act at Welf. & Inst. Code section 15600 et seq. The version amended in the Assembly on March 21, 2011 and ultimately enacted is narrower: it reaches only financial abuse, defined by reference to the single section 15610.30. The enacted trigger is therefore considerably more confined than the bill originally proposed.

Enrolled Bill Text

Assembly Bill No. 354  —  Chapter 55, Statutes of 2011

Introduced by Assembly Member Silva, February 10, 2011

Amended in Assembly March 21, 2011  ·  Passed the Assembly May 25, 2011  ·  Passed the Senate June 10, 2011

Chaptered by the Secretary of State July 1, 2011

An act to amend Section 859 of the Probate Code, relating to estates and trusts.

Legislative Counsel’s Digest

AB 354, Silva. Estates and trusts: property: wrongful taking.

Existing law provides that if a court finds that a person has, in bad faith, wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person is liable for twice the value of the property.

This bill would also establish liability for a person who has taken, concealed, or disposed of property, as described above, by use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined.

The People of the State of California Do Enact As Follows

SECTION 1. Section 859 of the Probate Code is amended to read:

Bill text is a public record of the California Legislature, reproduced here as a convenience and for historical reference. This section has since been amended and the text above is not current law. It is not legal advice. Verify the operative text at leginfo.legislature.ca.gov before relying on it.