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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about one of more difficult set of cases we come across and I call these the “Difficult Don’t Miss Undue Influence Cases”. Let me say that one more time – the Difficult Don’t Miss Undue Influence Case.
What is the difficult don’t miss undue influence case? That’s where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away. And so the question is, what can we do to invalidate the trust or the will that the wrongdoer got created using – exercising undue influence over mom and dad?
These are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination. So, you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge of mom or dad’s estate. But, as you can probably imagine, if mom or dad has any capacity whatsoever, they don’t like being told that they don’t have capacity and they certainly aren’t going to like that you’re the one who is asking the court to find that they are not capacitated. So mom and dad can become upset by this.
The person who’s the wrongdoer who is already unduly influencing your mom or dad, they’re going to take advantage of this situation and they’re going to point out to your mom or dad, that look, your son not only doesn’t love you and doesn’t like you, your son wants to take your capacity away. You son’s trying to get access to your estate before you’re even gone. This son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them.
So what are you to do in these type of difficult cases? Do you file for conservatorship and that’s why we call these the Difficult Don’t Miss Undue Influence Cases. Because if you’re going to file for conservatorship, you have to win it. If you don’t win it and mom and dad is capacitated – are still capacitated and a court finds that they’re capacitated. Chances are if you were in their trust or will, you’re certainly not going to be in it now by way of an amendment or a codicil to the will. And then you’re going to have a much higher hill to climb after your mom and dad die when you do bring a trust contest or a will contest.
So, what is a better option, perhaps? And it’s hard, because, sometimes you have to sit back and do nothing while mom and dad are living. And what we suggest to many clients is just focus on mom or dad in their sunset years of their live, give them comfort, give them care, give them compassion, spend time with them. Don’t talk to them about their trust or their will. Don’t talk to them about their assets – as difficult as that may be. Because the person who is exercising undue influence over them will turn that against you and make it seem like YOU’RE the one that’s trying to get their assets. YOU’RE the one that’s the greedy heir. YOU’RE THE problem, not them.
So if you can, stay disciplined. Focus on your parents. Care for them in the sunset years, however many months or years they have left. Then, once they pass away, there are remedies available to you, such as a trust contest, a hill contest, and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime.
These are very difficult cases. It’s very difficult to determine the best route to take. Our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue influence.