Buffington Law Firm’s trust litigation attorneys have litigated many trust disputes in which one or more trust beneficiaries are contesting the validity of the Trust, a portion of the Trust, or some other testamentary document. As discussed recently in this Blog, usually persons seeking to invalidate a testamentary document will allege either undue influence lack of capacity. For reasons discussed elsewhere in this Blog, undue influence is often the preferred litigation strategy and legal theory when seeking to bring an action to invalidate a testimonial document such as a Trust or Trust amendment.
In many or most Trust actions challenging testimonial documents the estate planning attorney who drafted the document being challenged is a critical witness. Usually such challenges occur after the Trustor (trustmaker) has passed. In such a case the attorney-client privilege between the estate planning attorney and the now-deceased Trustor no longer applies. [See generally California Evidence Code Sections 1261, 1260]. In such a case, if the estate planning attorney who prepared the subject trust or other challenged document may be the most critical witness in the case.
In litigation of this type, one of the most important formalities that Courts look to from estate planning attorneys in these situations is whether the estate planning attorney met with the trustmaker alone. At trial, it can be the kiss of death for the side defending the challenged Trust or Trust provision if the estate planning attorney cannot testify with reasonable certainty that he or she did this. Too often, estate planning attorneys have to testify that they met with the Trustor together with some relative or other who was benefiting from the Trust or Trust amendment (or other testamentary document). This immediately causes many Probate Judges, who are sitting as the finder of fact and law, to conclude or assume that the attending beneficiary may have been exerting undue influence over the Trustor and that accordingly the Trust is not the true product of the Trustor’s free will. Often the Trustor is elderly and there is a perfectly reasonable explanation as to why the beneficiary was at the meeting. But often this does not matter. If such person was present during the meetings between the Trustor and the attorney, many Judges give great weight to this circumstance causing the Judge to determine the presence of undue influence.
Buffington Law Firm recommends that every estate planning attorney make it a standard business practice when meeting with clients to always, for at least part of the meeting with the client, to meet with the client alone for at least a portion of the meeting. The attorney should satisfyi him or her self that the Trustmaker is acting free of coercion or pressure. This is also a great time for the attorney to ensure that the Trustmaker is well-oriented in time, place, and purpose i.e. knows what he or she is doing, knows who the natural objects of his or her bounty are (e.g. children, etc.) and has some idea as to the extent of the Trust estate. This will help ensure that the Attorney has established both capacity and lack of coercion. Naturally, it is best if this process by the attorney is documented in the estate planning file. A brief one-paragraph memo by the attorney will do, and is solid gold in litigation if such litigation arises.
If beneficiaries are bound and determined to contest a Trust or Trust provision, often nothing will stop them. But often, the above procedure can convince the other side that their action is weak and their prospects at trial are not good. Failing that, it can help ensure that the Court upholds the Trust and overrules a challenge. This procedure may seem insignificant but Buffington Law Firm’s trust litigation team has repeatedly seen Probate Courts give tremendous weight to testimony where this procedure was followed. It is difficult to overstate how importance these steps can be. Trials have been lost as a direct consequence of the estate planning attorney, however conscientious, not following this procedure.
If you are involved in a trust dispute or other inheritance dispute, Buffington Law Firm invites you to contact us for a Free Legal Consultation. All consultations are with an experienced trust and estate litigation attorney and are fully protected by the attorney-client privilege