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Trust Litigation — Lack of Capacity and Undue Influence

On Behalf of | Jul 6, 2015 | Trust Disputes

Buffington Law Firm’s Trust litigation attorneys often deal with cases involving persons who suffer from mental incapacity or disability.  Trust litigation often arises when a person, often an elderly person, allegedly suffers from a lack of mental capacity.  It is a fact of life that as people age sometimes their mental faculties decline to the point where the person simply lacks the mental ability to make or understand his or her decisions. This can be due to diseases such as Alzheimer’s, or many other similar causes of dementia and similar conditions. California Probate Code Sections 810-813 discuss mental incapacity.  In California there is a presumption, absent evidence or a judicial determination to the contrary, that all adults have “…the capacity to make decisions and to be responsible for their acts or decisions.”  Cal. Prob. Code Sec. 810(a).

Unfortunately, what sometimes happens is that a mental illness resulting in mental incapacity strikes an elder gradually, without most of the person’s friends or relatives (or lawyers) recognizing that this has occurred.  Over time, the elder loses the mental ability to make or understand decisions.  Typically the elder is disoriented in place and circumstance and cannot understand or manage his or her affairs or make competent decisions. In the context of inheritance disputes, this can be devastating.  What sometimes happens is that one child or relative recognizes that a parent or loved one no longer is able to make or understand decisions and takes advantage of the situation.  A common scenario is that this person takes the mentally infirm elder to an attorney and has the elder’s estate plan completely redone — to favor the one child.  The elder, suffering from dementia and incapacity, does not understand that by changing his or her trust that the other children or heirs are being disinherited.  While many estate planning attorneys will detect this scenario and refuse to facilitate this type of injustice, such is not always the case.  Naturally, when the elder’s other relatives discover what has happened, they bring a trust dispute petition in Superior Court.  These are the types of cases that Buffington Law Firm’s trust litigation team is experienced in handling.  Often the elder has passed before the other relatives discover what has happened.  Medical records may, or may not, be helpful in proving that the departed elder lacked the mental capacity to execute the revised trust and estate plan.

This type of scenario is similar to, but legally different from, cases involving undue influence.  Undue influence is a legal term which essentially means that while an elder did not meet the definition of incapacity under the California Probate Code [See Cal. Probate Code Sec. 810-813] that person nonetheless suffered weakness of mind that resulted in that person taking actions that were not of his or her free will, but instead derived from the domination or control of another.  These types of cases often derive from situations where an elder is infirm and completely dependent upon one relative or other.  Sometimes that relative takes advantage of this control and causes the elder to give that relative gifts, or changes to the subject trust, which gifts or changes do not represent the true wishes of the elder.  Undue influence is a common basis for trust disputes in Probate Court and Buffington Law Firm is experienced in handling these types of cases.  While the issues are similar to incapacity, there are differences because in undue influence cases the elder is not necessarily suffering from a mental disability to an extent constituting a lack of mental capacity.  While the person in question may suffer from mental decline, it need not constitute actual lack of testamentary capacity.  Undue influence is discussed in more detail here.

If you are involved in a trust dispute deriving from someone taking unfair advantage of a loved one via incapacity or undue influence, we invite you to call our Firm for a free legal consultation.  You will speak to an actual attorney and there is no obligation.