Buffington Law Firm's Trust Litigation attorneys have been keenly following the key trust litigation case of Barefoot v. Jennings. This case, when originally decided by the Court of Appeal, had a far-reaching and downright disruptive effect upon trust litigation in California. The reason is simple. The decision in Barefoot held that if a plaintiff was challenging a trust, where there was an amendment that disinherited the plaintiff, that this meant that the plaintiff lacked standing to challenge the very amendment that disinherited him or her. This gave rise to an obvious circular dillemma -- if a defendant procured, by improper means such as undue influence or the like, an amendment that disinherited another beneficiary, not only was that beneficiary disinherited, but the amendment caused the beneficiary to lose standing to challenge the amendment in probate court under Probate Code Section 17200! This was a surprising decision, to say the least, since many trust litigation cases involve this precise scenario.
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.
Financial elder abuse in California is a pervasive and growing problem. Buffington Law Firm's Trust and Elder Law litigation attorneys have frequently and repeatedly encountered egregious examples of financial elder abuse. We have a track record of solving such problems.
Buffington Law Firm's trust and elder law litigation team has decades of experience dealing with cases in which undue influence is alleged. The fact patterns for these cases are depressingly similar in many instances. Typically a younger friend, relative, or adult child or grandchild will pressure an elderly or infirm person to change their estate plan, or convey property, in favor of the younger person. For undue influence to occur it is not necessary that the victim lacks mental capacity. That there is such a requirement is a common misconception.
Buffington Law Firm's Trust dispute attorneys have more than two decades of experience in living trust litigation. As many people know, revocable or "living" trusts have become extremely popular in California and have to a significant degree replaced wills as the preferred means of transferring family wealth to the next generation. As most people know, trusts are designed to "avoid probate." Put simply, this means that one or more successor trustees of a trust are responsible for interpreting the trust and implementing its written instructions without supervision by a court. This contrasts with a probate of a will whereby a probate court supervises the implementation of the will.
In earlier Blog articles we discussed the difficulty in causing the Court to throw out meritless lawsuits before trial. Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits. A Plaintiff can survive Demurrer merely by alleging facts, even improbable "facts" of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion requires only a slight controversy concerning key facts. These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit.
Buffington Law Firm's trust dispute attorneys have been asked to solve many problems relating to misbehaving problem successor-trustees of revocable or "living" trusts. One of the most common problems with trusts once the trustors die and a successor-trustee takes over is the way successor-trustees sometimes handle trust money. Since living trusts "avoid probate," they are ordinarily not under the supervision of the Superior Court. While avoiding probate is often touted as a benefit of living trusts, it can also lead to problems with successor-trustees and the way they handle the trust money and assets.
Buffington Law Firm's Trust and Elder Law litigation attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, whether that person posesses testamentary capacity -- the ability to make a will or trust. To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not. However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.
Buffington Law Firm's California Trust Litigation attorneys have handled numerous cases involving so-called "Dynasty Trusts" as well as alternative forms of estate plans similar to these. A "Dynasty Trust" is an estate plan in which the trust does not simply distribute assets, wind up, and dissolve when the trustors pass away --the way wills usually work. Instead, the trust is set up to live on for an indefinite period after its creators die, retaining most assets of the estate in the trust, and usually paying mainly income only to the beneficiaries. This type of trust is designed to control the beneficiaries even after the trustor passes away. Perhaps the trustors believed that their children are irresponsible with money. Lawyers sometimes call this type of scheme "dead hand control" as the "dead hand of the past" is controlling the trust, its assets and income, and thereby the beneficiaries.
Buffington Law Firm's civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: "Why can't I get this frivolous lawsuit thrown out before trial?" The question is, for many cases, understandable. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.