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Hi, this is Stewart Albertson with Albertson & Davidson. In this video, I want to talk about how we can support the claim, and meet our burden of proof, to show that undue influence took place.

Some of the markers that we look for are the actions by the person that we believe exerted or exercised undue influence over a decedent.  We want to look at this person’s place of business in the decedent’s life when the decedent was still living.  Did this person have control over the decedent’s access to food?  Did they have control over access to medications?  Did they have control over access to going to medical appointments to see physicians?  Did they have control over the financial information of the decedent?

We see these markers and we look at this person and we say, “did they take their place within the decedent’s life, where the decedent relies on them for many things:  their medications, transportation, food?  Did they take that and did they exercise undue pressure over the decedent to get the decedent to create a trust or a will that benefits them, at the expense of other people?”

The more we see these markers, the more that we see the undue pressure, such as a wrongdoer calling up a lawyer that the decedent has never met to make an appointment to create a new trust or a new amendment or a new will or a codicil to that will, to that person driving the decedent to the lawyer, to meeting in the lawyer’s office with the lawyer and the decedent to create the trust, to have multiple emails and texts with the drafting attorney to make sure that the trust or will is drafted according to the decedent’s wishes, those are all things that we see time and time again in these undue influence cases.

One thing that really helps us, in addition to everything I’ve just pointed out is the medical records. Do the medical records show that the decedent suffered from some type of mental incapacity, such as dementia or Alzheimer’s?  It doesn’t have to be dementia or Alzheimer’s, but that’s one we commonly see.  If the decedent is suffering from any mental incapacity issues, and you have all of those other things we’ve talked about, those elements we’ve looked at, where this person is in a position of power, that generally leads us to believe that that person exercised undue influence over this individual. If they’re receiving a lion share of the estate plan, or they are receiving more than they would have, absent the undue influence.

Those are some of the things we look at to determine if we can show undue influence took place during the lifetime of decedent, often shortly before the decedent passed away.

 

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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.

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Hi, this is Keith Davidson with Albertson & Davidson. In this video, I want to talk about some of the warning signs that you should be aware of to clue you in that undue influence might be taking place with one of your parents.

As lawyers, when we get undue influence cases we typically get them after everything’s been done and we’re looking at the facts in hindsight. But, as a child, there’s times when things happen, and you might be suspicious of what’s happening, but you’re not sure if it’s something bad or not. That’s what I want to talk about. These are the warning signs that really should be on your radar and start raising red flags when you see them.

For example, let’s say you have a parent, and you can tell that they’re kind of slowing down, and you notice that somebody (like a neighbor, a caregiver, or a stranger who you don’t even know), starts spending a lot of time with that parent at their house, and then they start helping the parent write checks or go to medical appointments. That could be a real red flag of somebody who’s trying to cozy into the parent and slowly take control.

Typically, the way undue influence works is: somebody starts off by being just a friend, and then a helper, and then they start taking over everything; check-writing, finances, medications, doctor visits, even communications. That’s another warning sign.

Let’s say that you are finding it difficult to talk to your parent. You try calling them and somebody else answers the phone and won’t let you speak. Or, when you talk to your parent, there’s somebody else who’s always on the other line, listening in. That’s a huge red flag that somebody is probably trying to control the flow of information to the parent. That could be a real problem. So that’s another big warning sign.

One of the elements of undue influence is that somebody controls the necessities of life; food, medication, all those sorts of things. So if you see somebody who you aren’t that familiar with, and they’re doing all the grocery shopping for your parent they’re making meals for the parent they might be doing something that’s really nice and maybe there’s nothing wrong with that, or they might be doing something where they’re controlling the flow of food to the parent which is one way to manipulate somebody who is old and not able to resist undue influence. But, that doesn’t mean that every time you see one of these things that it’s bad, but it definitely should raise your attention and you should look into it.

So those are some of the warning signs that you should be on the lookout for in possible undue influence against one of your loved ones.

 

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Hi, this is Stewart Albertson with Albertson and Davidson and we get this question every now and then, and the question is: Do I really need to hire a lawyer for my trust contest or will contest or can I do it on my own? Can I go order a book from Nolo press or from Amazon and just figure out how to do this myself? And here’s the answer: No. That could be the end of this article right now, but no, you cannot handle your own trust contest or will contest.

I know that sounds like a self-serving statement because I’m a lawyer and I get paid to bring these cases, but this would be like asking you, can you handle your own gallbladder surgery? Can you handle your own appendectomy? Can you handle your own heart surgery? No, you’re going to have to hire professionals to do that if you want it done right. So get the books from Amazon, get the books from Nolo press so that you can educate yourself on what a trust contest is, a will contest, and how they work so that you can go in and sit down and have a good conversation with a professional lawyer to determine the best course of action moving forward. But if you really want a trust contests or a will contest done properly, you’re going to have to use a professional lawyer who has the experience in the field to handle it properly.

 

Can you unduly influence someone NOT to take action?-2

Can you unduly influence someone NOT to take an action?  In nearly all Trust and Will disputes, an undue influence claim is brought to overturn a Trust or Will that was executed while the elder was unduly influenced.  But not every Trust and Will case turns on action, sometimes inaction can be just as damaging.

For example, sometimes parents get mad at their children (sometimes you ask?  Okay it happens all the time).  And to punish the child, a parent will rush to the lawyer’s office and amend the Trust or Will to reduce that child’s share or disinherit them altogether.

A few years go by, the parent and child make amends, and the parent wants to change the Trust and Will again to return the child to his full share of the estate.  But then, another child gets wind of this intent and tries to prevent it.  Maybe the other children had no problem with this one “trouble maker” getting booted out of the estate and thereby increasing everyone else’s share.

Undue influence is the use of severe pressure that causes the elder to replace his or her own intent with that of the wrongdoer.  Influence (of the undue variety) is not illegal.  Everyone is influenced every day by the people around them.  But undue influence is more sinister in that is supplants the intent of the elder completely.

Undue influence can be used to cause a person to act, or refrain from acting, in a way that overcomes the person’s free will.  (See Welfare and Institutions Code section 15610.70).

As a result, where a parent is kept from changing a Trust to add a disinherited child back into the estate, undue influence could be used to overcome the resulting distribution.

It is not just what a parent does, but what a parent does not do, that could form the basis of a Trust or Will lawsuit.

News outlets reported over the weekend that Mickey Rooney’s widow is contesting his Will in Court.  According to this news story by Alan Duke on CNN.com; Mr. Rooney’s estate has an estimated value of $18,000, and his Will leaving his entire estate to his step-son (and excluding is ex-spouse and natural-born children) is being contested.

mickey rooney's estateAs intriguing as this sounds, what are the true facts of this case?  It can be hard to tell because only a fraction of the estate information has been made public up to this point.  If you do not know about estate law, however, you may think that the late actor’s estate truly was worthless.  If that were the case, why is his widow contesting his Will?  There must be more than meets the eye.

First of all, many famous people have Wills that are filed with the Court after they die.  The Will’s are meant to satisfy people’s urge to gain access to the inside information of a celebrity’s estate.  But many times, the Will is meaningless because most people of celebrity status create Trusts during their liftetimes (revocable, living Trusts), and transfer their wealth to the Trust to be held and distributed by the Trustee outside the Court system (and outside the public microscope of the media).  So just because a celebrity’s Will is filed in Court does NOT mean that a Trust is non-existent.  In most cases, the Will is just a red herring meant to satiate the public.

Secondly, the estimated estate value listed on a petition for probate is just that—a rough estimate.  Nothing has been officially appraised yet.  Only after the estate is open is a proper inventory and appraisal compiled by the Exeuctor (using a probate referee to appraise the assets) and filed with the Court.  Until the official appraisal is filed, the numbers listed on the petition for probate are mere speculation.

Furthermore, only assets that are governed by the estate are listed and appraised.  Anything held in a Trust would fall outside the estate and therefore not be appraised as part of the probate process—and thereby become public.  So it is possible that the “probate” estate has very little in it, while the “Trust” estate could have far more value.

So why contest a Will for a valueless estate?  I don’t know why the parties are doing so here, but I could speculate on a few possibilities.  One possibility could be royalty rights to the actor’s estate.  There could be a provision in the Will either directing future royalty rights or exercising a power of appointment, which is a mechanism that allows a decedent to change the distribution from his Trust using a term in the Will.  Powers of appointment are not often exercised, but they can be a valuable tool to change the distribution provisions of a Trust without having to do a Trust amendment.  And since Mr. Rooney was under a conservatorship at the time of his death, a Trust amendment would not have been possible (unless the Court ordered it).  A Will on the other hand is still perfectly possible even when signed by a conservatee.

Whatever the reason, people don’t hire lawyers to contest estate’s worth $18,000 (usually) so there is something at stake in this mess…the question is what?

Have you ever had someone promise to leave you something at their death in return for you taking care of that person?  You may have a contract to make a Will, which is enforceable in California.  In this video, Stewart Albertson discusses the way in which you can enforce a contract to make a Will in California Will contest cases.

 

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You may be surprised to learn that your Will could be revoked without you even knowing it.  Under Probate Code section 6124, if your original Will was in your possession at the time of death and if the original Will cannot be found, the law presumes that you destroyed the Will with the intent to revoke it. 

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Sometimes this may be true, someone may decide to destroy his Will for the purpose of revoking it.  But the presumption applies even in cases where the original Will may just be lost or misplaced (or intentionally destroyed by someone else)—resulting in an unintended revocation of the Will.

This presumption of revoked Will sounds harsh, and often has an unintended result, but there is a bright side to this law.  The presumption is not absolute.  In fact, it is one of the easier presumptions to overcome because it only affects the “production of evidence” rather than a “presumption of proof.”  What exactly does that mean?  The Fourth Circuit Court of Appeal’s recent decision in Estate of Trikha helps explain this important difference and provides a roadmap for overcoming this harsh presumption of revocation.

Estate of Trikha presents a tragic set of facts between a man, his wife, and kids from a prior marriage.  The wife (Suchitra Trikha) instituted a divorce action because she did not want her husband (Satish Trikha) to talk to his kids from a prior marriage.  Suchitra, however, offered to reconcile if Satish would agree to disinherit his prior children and leave his entire estate only to his children from the current marriage.

Less than a month before Satish’s death he had a Will prepared where he left his estate equally among his four children.  During the course of the divorce proceedings, matters became increasingly difficult and Satish eventually killed himself while staying at a Hotel.  Suchitra and her two children were the first to retrieve Husband’s affects and the papers from his car, but she testified the original Will was not located.  Of course, Suchitra had a strong motive to destroy the original Will as it went against her desires.

The trial court noted that the Will contestant, Suchitra in this case, usually has the burden of proving Will revocation.  But a presumption of revocation arises under Probate Code Section 6124 where an original Will, last in possession of decedent, cannot be found.  That places the burden on the Will proponent (Satish’s first son, Satish, Jr. in this case) to prove the Will has NOT been revoked.

At trial, Satish, Jr. introduced evidence to show that both Suchitra and her children were first to have access to Satish’s papers, they had the ability to destroy the original Will, and they had the motive to do so.  Nevertheless, the trial court ruled in favor of Suchitra and held that the evidence presented was not enough to persuade the Court that Suchitra had in fact destroyed the original Will.

The Appellate Court disagreed.  Section 6124 specifically states that the presumption contained in that section is “a presumption affecting the burden of producing evidence”—not a presumption affecting the burden of proof.  What’s the difference? 

The Appellate Court explains that a burden of proof presumption requires a party to prove by a preponderance of the evidence that the fact is not true.  Whereas a burden of producing evidence is merely a preliminary assumption that goes away once evidence is produced to establish its nonexistence.

For example, in this case once evidence was produced showing it was possible the original Will was destroyed because the wife had ample opportunity and motive to destroy it, the assumption of revocation goes away.  The Court then has to decide whether to admit the Will to probate or not based on the totality of the evidence without any presumption against the Will proponent.

In other words, the burden of producing evidence is a much lower presumption (better understood to be a preliminary assumption of a fact).  The fact assumption goes away once any contrary evidence is introduced.  So the presumption of revocation is not absolute.  It can be overcome, and overcome rather easily so long as there is some contrary evidence to suggest the Will was NOT destroyed with the intent to revoke.

 

Wills are statutory creatures.  What does that mean?  They are created, and governed, almost exclusively by the black letter law in our California Probate Code.  In other words, there is no fundamental constitutional right to create a Will in a certain manner.  You have to follow the rules set down by law, and if you don’t, then you do not have a valid Will.

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In California, all Wills require the signature of two witnesses to be valid (Probate Code Section 6110.  Wills are NOT notarized in California and they do not make a Will valid on their own).  And if a Will contest arises in Court after the person who created the Will (call the Testator) dies, then the person fighting for the validity of the Will first has to prove “due execution.” 

Due execution is a fancy way of requiring proof that the Will was properly signed by the Testator and two witnesses.  (By the way, the witnesses have to see the Testator sign and each other sign as well, so everyone needs to be in the same room at the same time to make a valid California Will).

Due execution is relatively easy to prove, especially with the testimony of one or both of the witnesses.  Once due execution is proven, the Will is considered valid and it then becomes the burden of the Will contestant to prove the Will invalid for any reason (such as for lack or capacity or undue influence).

This concept, and sequence of proof, was recently covered by the First Appellate District of the California Courts of Appeal in Estate of Ben-AliEstate of Ben-Ali has one of the more peculiar set of facts for a Will contest matter.  The decedent in the case is Taruk Joseph Ben-Ali.  Taruk’s father (named Hassan Ben-Ali) hid his sons death for many years.  In fact, he also hid his son’s body inside the walls on an apartment complex.  The father didn’t kill the son (apparently), but he had to hid the fact of the son’s death because the father’s most valuable asset (and the source of his income) was an apartment building that father had transferred into son’s name to avoid creditors.  Son was married just a few months before his death and had no Will.  Therefore, the property in son’s name would be left, at least in part, to son’s wife. 

Rather than allow the property to transfer to wife, father hid his son’s death and forged his signature on a number of documents.  Once son’s death was finally revealed, father produced a Will that was purported signed by son and witnessed by two witnesses (whose signatures were largely illegible). 

Surprisingly, the trial court held that the Will was valid by comparing the son’s signature to other signatures of his, they appeared to match thereby authenticating the decedent’s signature.  And one of the witnesses testified as to his or her signature on the Will.  But there was no testimony to authenticate the other witness’s signature.  Nevertheless, the trial court found the testimony sufficient to admit the Will to probate.

The appellate court disagreed.  Holding that (1) the son’s signature had been forged many times by the father therefore his signature could not be properly authenticated, and (2) both witness signatures must be authenticated to prove due execution.  That means there must be some testimony to prove that both witness signatures are true signatures of the people who purportedly signed the Will.  This proof can be established by an expert witness, by the testimony of people who are familiar with the person’s signature, or by the Judge in comparing signatures with previous (legitimate) example.  Without this proof, however, the Will cannot be admitted.

The bottom line: be sure you can authenticate your witnesses’ signatures when defending a Will in probate Court.  If you can’t authenticate, then the Will must fail.

There is an old saying in the law that goes “first in time, first in right.”  For Wills, the opposite is true—last in time, last in right.  Typically the last valid Will wins.  But what if the last Will is not valid?  That could allow an earlier Will to apply instead.  And it is this dispute—last Will versus second-to-last Will—that is at the heart of nearly every Will contest lawsuit.

Of course, a Will cannot be overturned just because the heirs or beneficiaries don’t like the Will terms.  There has to be some legal basis to invalidate the Will (see our earlier blog post on invalidating a Will).  Once a legal basis is determined, it’s time to get down to business; actually filing the Will contest.

A Will contest lawsuit is unique in that it requires a few steps, and a few different filings, before the lawsuit is properly “before the Court” (which just means all the correct paperwork is filed so the Court can handle the matter).  Let’s walk through the steps for a properly filed Will contest lawsuit:

Step 1 – Petition for Probate: You have to open a probate estate.  In California, a Will is not is not a Will until it is admitted to probate.  The procedure of admitting a Will to probate is the Court’s method for proving that the Will is valid.  Before being admitted to probate, a Will is simply evidence of a potentially valid Will.  Once admitted to probate, a Will is, by law, a valid Will.

So whether you are trying to admit the last Will or an earlier Will, you must ask the Court to admit the Will to probate and that requires a Petition for Letters Testamentary (also referred to as a Petition for Probate).  Under the Petition for Probate, you recite the facts as they pertain to the Will you want admitted and then you must sign the Petition and file it with the Court. 

What if the opposing party has already filed their own Petition for Probate?  No problem, you file your own Petition for Probate as well (they are referred to as “competing petitions,” but you use the same form whether you’re filing first or second).  It makes no difference who files first, as long as you file before the opposing Will is admitted to probate.

Step 2—The Objection.  The next step is a separate filing called an objection to probate of Will as prescribed by Probate Code Section 8250. This is the actual Will contest filing where you explain why the other person’s Will is invalid and what legal basis (or bases) you are using to dislodge that Will.  A Will contest objection under Section 8250 is unique under the Probate Code in that it is the only probate filing that requires the issuance of a summons (like the ones used for civil complaints).  Both the objection and the summons must be personally served on everyone (and I mean everyone) mentioned in the Will you are trying to invalidate, along with all of the decedent’s heirs (if they are not otherwise mentioned in the contested Will). 

Step 3—Prove your case.  At trial, the proponent of the contested Will must first prove due execution of the Will (which means that it was properly executed as set forth under Section 6110).  Once execution is established, it is then the contestant’s burden to prove any of the legal grounds to invalidate the Will, including lack of capacity, undue influence, fraud, duress, or revocation.  Never forget what your burden is at trial because it will guide your actions in conducting discovery beforehand.

After taking the right steps, your Will contest is on its way through the Court system.  Now the work really begins….