South-Western Legal Studies in Business

Persons Who Give Care to the Dying May Not Be Beneficiaries of a Will or Trust Changed by the Decedent

California high court held that friends who provided care during the last two months of life were "care custodians" who could not benefit from a change in a trust made within days of death. Paid or not, such persons may not benefit under such circumstances.

Topic Wills, Estates, and Trusts
Key Words

Testamentary Transfers, Beneficiaries, Care Custodians

C A S E   S U M M A R Y

Bosco executed a Revocable Living Trust in 1991 and amended it seven times prior to her death ten years later. A widow with no children; her estate was to pass to her niece and nephew. Two months before her death, she moved into the home of long time friends Foley and Erman, who cared for her during her final illness. Three days before she died she amended her trust to give everything to Foley and Erman. Her relatives petitioned the court to invalidate the final amendment to the trust. The trial court would not, but the court of appeals reversed. Foley and Erman appealed.


Affirmed. Foley and Erman testified that they "were simply performing acts of kindness on a purely volunteer basis as good friends." The trial court found that the care given was not a business relationship, but was done out of friendship for Bosco. However, under state law, Foley and Erman are "care custodians." As such, they are disqualified from benefiting from Bosco's amended trust. Even if they were not paid for the care they provided, they are care custodians who may not receive benefits when a trust is amended shortly before death during the time of care.


Barnard v. Foley, 139 P.3d 1196 (Sup. Ct., Calif., 2006)

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