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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 Keith Davidson at Albertson & Davidson.  And in this video, I want to discuss step-parents.  And I don’t mean to disparage step-parents, there’s a lot of very good step-parent and step-child relationships out there.  But, there’s also some bad ones.  And a lot of times we’re asked, “Can my step-mom or step-dad, can they change the estate plan after my parent dies?”  So, typically, in this scenario, maybe you have a father who married somebody new and that’s your step-mom.  And then your father passes away and you always thought you had a good relationship with your step-mom, but after your dad passes, things start to get a little strained and awkward and you start to wonder can she actually change the estate?

In some cases, it might actually get downright hostile and maybe the step-mom actually tells you, “I’m changing the estate and I’m leaving it all to my kids and I’m not going to leave your father’s share to you after all.”  And you wonder, can she do that?  And the answer is maybe.  And that’s a typical lawyer answer, right?  But it depends; it depends on what your father did when he planned out his estate.  Or, if he didn’t have any planning at all, that could be a real problem.

So the best case scenario would be if your father had created a trust prior to his death, he has the right to leave assets to step-mom and that’s fine.  But, typically, what you’d want to see is that he left money to step-mom in a trust.  So she can use that money for her care and support during her lifetime, but she can’t change the ultimate distribution of it.  Whatever’s leftover after step-mom passes, has to go to you.  But that only works if your dad created a trust and if he had a trust created that had those type of terms in it that allowed the step-mom to use the assets but not control them.  That required that the assets go to you after death.

If your father didn’t do that, then you probably are not going to be entitled to his share of the estate.  And so what happens a lot of times is, either your father leaves everything to the step-mom, in which case she can do whatever she wants after your father dies, and she can cut you out.  Or, he just doesn’t plan at all and things just pass to the step-mom because it’s in joint tenancy or she’s the beneficiary on life insurance, or whatever the case may be.

So when these things are not planned out and if the assets actually pass to step-mom after your father passes away, then you’re really in trouble, because the step-mom can do whatever she likes.  She becomes the owner of those assets and she can do whatever she wants with them as the owner.

The fact that your father may have had a family home that you grew up in and lived in and has been in the family for decades, the law doesn’t care about that – if your father didn’t plan it out property.  And so that’s really the big question.

So anytime somebody approaches us and says, “Can step-mom change the estate after my father passes away?”  The first question we’re going to have is, “Well, what did your dad have in place?  Did he have a trust?  Did he have a will?  Did he have something that we can look at to see if you, as a child, have any rights to any of those assets?” And if you were to tell us that no, he didn’t have any of those things, then chances are, you’re out of luck.  And that’s a little something about the downfalls of step-parent and step-children relationships when it comes to passing assets.

 

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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.

 

If you are the victim of a poorly drafted Trust or Will that prevents you from inheriting the property your parents wanted you to have, you may have an attorney malpractice claim on your hands.  In this course, we discuss the rights and options you have to recoup the harms and losses you suffer from attorney malpractice.

The Facts

In this video we cover the basic rules for attorney malpractice claims and present the factual scenario we will use in the next two videos.

The Law

Partner Stewart Albertson discusses his professional opinion of how the law of attorney malpractice applies to the facts presented in Lesson 1.

The Talk

Partners Keith A. Davidson and Stewart Albertson discuss their views of how attorney malpractice is used to recoup harms and losses suffered by attorney malpractice.

 

If you are contesting a Trust or Will, or filing a California financial elder abuse action, you have to know about undue influence.  In a majority of cases, undue influence is alleged as the basis to overturn a California Trust or Will.  And the same concept can be the basis to file and win a California financial elder abuse claim.

In course 3, we cover the facts, the law, and the talk for California undue influence claims.

The Facts

In this video we cover the basic rules for undue influence claims; and then present the factual scenario we will use in the next two videos.

The Law

Partner Keith A. Davidson discusses his professional opinion of how the law of undue influence applies to the facts presented in Lesson 1.

The Talk

Partners Stewart Albertson and Keith A. Davidson discuss their views of how undue influence is used and applied in Trust and Will lawsuits.

California Trustees have a lot of duties and responsibilities, but none are more important than the top three Trustee duties discussed in course 2 of our video series.  You can find an in-depth written discussion of this topic here.

The Facts.

In this video we discuss a basic factual scenario that we will use in the next two videos.

The Law.

In this video, partner Stewart Albertson gives his professional opinion on Trustee duties.

The Talk.

In this video, partners Stewart Albertson and Keith A. Davidson give their views on Trustee duties.

It’s time for something new.  We developed a new course called The Beneficiary’s Corner.  This course will allow us to delve more deeply into a California Trust or Will topic.  The first lesson of each course is The Facts, where we set out a hypothetical scenario drawn from our experience in actual cases.  We then provide you with our professional opinion in The Law section.  And finally, we have our partners conduct a roundhouse discussion of the topic in The Talk.

Below are the videos from our first course focusing on Trustee investing.  Each month we plan to release a new course in the same format.  You can find all of our courses here.   You can also find an in-depth written text for this course here.

Finding the right key for your case

How do you select a lawyer to represent you in a Trust or Will litigation matter? It can be a frustrating process.

What we suggest to people is to be comfortable with the person you are meeting with before hiring a lawyer. Lawyers have a fairly bad reputation, but that reputation does not apply to all lawyers. You need to meet with several lawyers and make sure you are comfortable with the lawyer you select.

A few questions we recommend asking include: does the lawyer sound like they know what they are talking about? Do they have an interest in your case? If they are interested in your case, what are they interested in? Is it an interesting fact situation, legal situation, or something they feel compelled to address?

After asking a few questions, sit and see what your comfort level is with the person. If you are comfortable with the person and they sound like they know what they are talking about—and are interested in the case—then you probably found the right lawyer for you.

The most important thing is the relationship between the attorney and the client. There will always be ups and downs in every litigation case ad you need to be able to work together and trust each other in good times and in bad. If you feel comfortable in all this, then generally you have found the right attorney for you.

Ya Wanna Fight???

Occasionally we are asked about fighting against a big firm. Maybe your Trustee decides to hire a big firm in Los Angeles, New York, Chicago, Boston, or some other big city. How are you going to fight your Trustee when he or she is represented by a big law firm? That’s a fair question.

Many people think that large law firms have unlimited resources and can crush a small firm in litigation. But in Trust and Will litigation that tends to be false. First, large law firms tend to be far more expensive—meaning their client will feel the financial pressure of litigation before you do.

Second, large firms have a hard time doing anything “outside of the box” because of the many partners to which each lawyer must answer. That means if anyone does anything novel they may be questioned or challenged for it later by the higher-ups. As a result, most big firms engage in a traditional style of litigation, which is fairly predictable.

Third, the California Code of Civil Procedure applies to everyone in California—big firms and small firms alike. Yes, it takes work to enforce the rules, but after having done it many times against big firms, we can easily attest that the rules are applied against big firms just as well as small firms.

A specialist, boutique firm is smaller, more nimble, and can react appropriately and more strategically than most large law firms in Trust and Will litigation. As a result, a specialty firm can develop and employ a unique strategy that better fits your case.

Would you

There are times when a Trust settlor names a successor Trustee who is not a beneficiary of the Trust. This is often a great idea because naming a child as Trustee can be disastrous. And naming two or more children as Co-Trustees is a fantastic idea if you want to keep lawyers fully employed (and who doesn’t want that???).

The problem, however, is when the non-beneficiary Trustee is challenged by a Trust beneficiary. For instance, if a warring beneficiary is determined to exert control over the Trust, he or she may challenge the appointment of the successor Trustee when the time comes for that Trustee to act. What incentive does a third-party have to fight to be Trustee when there’s nothing in it for them?

Fighting to block a named successor Trustee from acting is not an easy thing to do depending on the Trust terms. Most Trust terms do not allow a beneficiary to remove and appoint a new Trustee. That means a Trustee has a right to act provided there are no “skeletons” in the Trustee’s closet. What type of skeletons would block the appointment of a Trustee?

Probate Code section 15642 provides the grounds for Trustee removal, which can be used at times to block a named successor Trustee from acting in the first instance. The grounds include things like insolvency of the Trustee, unfit to act (whatever “unfit” means), where the Trustee committed a breach of trust, where the person cannot resist fraud or undue influence, and the like.

The problem arises where a named successor Trustee has not yet taken control of the Trust assets, but is challenged by a beneficiary from acting. The named successor may not be able to access and use Trust funds to fight the beneficiary over appointment as Trustee. And a non-beneficiary Trustee has no financial stake in the outcome of his or her appointment. In other words, the named Trustee is put in the unusual position of paying out of her own pocket for the right to take on a thankless job with an unruly beneficiary to deal with.

So why would anyone take on such a fight? It comes down to principal. Sometimes standing up for what the Settlor wanted is more important than the personal sacrifices incurred in such a fight.

The better approach for all concerned is to have an easy way out—a safety valve that will allow someone to step in and cure the problem without excessive fighting. And that brings us to the unique, and rarely used, idea of a “special” Trustee or a Trust protector. For our discussion here, both terms can do the same function; namely exercise the power to remove and appoint Trustees.

If a beneficiary insists on fighting against a named successor, then give the power to remove and appoint to a neutral third-party (called a Trust protector or special Trustee) who can choose an alternate Trustee. This approach satisfies the beneficiary by preventing the named Trustee from acting, but it also prevents the beneficiary from effectively controlling the Trust by appointing a pliable lackey as Trustee. Instead, the Trust protector can independently choose a competent person to act as Trustee who is NOT beholden to the beneficiary for his or her job.

Just another example of how well laid plans can help avoid disaster.