Buffington Law Firm’s trust dispute attorneys have more than two decades of experience in handling trust inheritance disputes. This Blog article will briefly discuss a certain type of trust dispute that is unfortunately quite common — situations in which someone exercises undue influence over a trustor (trustmaker) and causes that person to make changes to his or her trust that are not really representative of the trustor’s true wishes.
Under California law undue influence is defined generally as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will” with an inequitable result. [California Welfare and Institutions Code § 15610.70]. It is important to understand that, contrary to what many believe (including many attorneys) a finding of undue influence does not require the court to find that the trustmaker was mentally incompetent or suffering from dementia. The law recognizes that elderly or infirm persons, even when mentally capable, often suffer from a lack of mental vigor and weakness of mind that makes them vulnerable to “excessive persuasion” whereby they are badgered or pressured into making property or testamentary dispositions that they would not otherwise make. When the law finds that this has happened the Court has broad equitable powers to effect remedies, including undoing the gift or testamentary disposition that resulted from the undue influence.
There are an infinite number of scenarios in which undue influence occurs. Not uncommonly a relative will suddenly present the elderly person with voluminous and complex papers to sign. Sometimes the relative pressures this person by insisting that this is to “protect your estate” or some variation on that theme. Buried in the papers may be a trust amendment that radically changes the elder’s estate plan in favor of the relative and to the detriment of the elder’s other children or intended beneficiaries. One “red flag” is a situation that our Firm sees repeatedly is one in which the elder is pressured to make changes during a time when he or she is struggling with health challenges, often not long before death. These scenarios are always suspect.
Another common undue influence scenario is one in which an elder is pressured to sign over property to another, even though doing this may completely contradict and upset an estate plan that the elder has had in place for many years.
Witnesses are rarely available in undue influence cases for obvious reasons. Often the elder has passed away before the act is discovered. However, the law recognizes that these cases must usually be proven by circumstantial evidence. Further, under certain conditions (to be discussed in a future Blog article) the burden of proof shifts such that the perpetrator of the undue influence must prove in court by a preponderance of the evidence that the transaction or trust amendment in question represented the true free will of the elder.
If you are involved in a trust dispute in which you suspect undue influence, we urge you to contact us for a free legal consultation. All consultations are with an experienced trust litigation elder law attorney, are completely confidential, and there is never any obligation.