Fighting Undue Influence
Our San Francisco Probate Litigation Lawyers Challenge Misbegotten Wills
Elderly, isolated and ill individuals are at a high risk to a person or caretaker who exerts pressure to gain an undeserved benefit upon their death. Undue influence is a form of elder financial abuse. In such a situation, family members must assert their rights in probate court to enforce their loved one’s true intentions. Challenges to a will based on undue influence require a probate litigation attorney in the Bay Area. He or she should have experience in all matters regarding contested wills and trusts. This is because courts are reluctant to invalidate testamentary wills that otherwise appear valid.
Undue Influence in California
To execute a legal will, a testator must understand the nature of the will, his or her relationships to family members and the amount and kind of property owned. These three elements must be present to have the requisite mental capacity to execute a valid will. If an outside person or caretaker exercises pressure to negate the testator’s free will, the probate court has the power to declare the will or trust invalid upon objection by a family member.
The California Probate Code creates a presumption of fraud when a will meets certain conditions. One such presumption arises when a testator is dependent upon a caretaker who receives a transfer under the will or trust. When this statutory presumption arises, the person accused of exercising undue influence bears the burden of proving there was no fraud.
A Common Situation Regarding Caregivers and Undue Influence Cases
Determining whether undue influence occurred upon a testator is rarely a simple case. For example, imagine a situation where “Betty” is elderly, living in her own home and is in need of assistance. Betty hires a caregiver, who may be a family member or a non-relative. Betty’s heirs, whether they are children or other relatives, do not visit or call very often.
In her will, Betty leaves everything to her caregiver. Is this a result of undue influence? Sometimes it is, but sometimes it is not. The caregiver can take advantage of his or her position to exert pressure over the care receiver. The care receiver becomes very dependent on the caregiver in those situations, both physically and emotionally.
Sometimes the threat is explicit. For example, “If you do not take care of me by leaving me your estate, then I will abandon you. There is no one else to care for you and you will have to go into a rest home.” Sometimes it is unspoken but implicit.
An Experienced Probate Litigator is Necessary in Cases of Undue Influence
In cases of elder financial abuse and undue influence, only an experienced probate litigator can handle all the comprehensive legal aspects and emotional turmoil of the case. If you have questions about whether undue influence occurred, we can help. Charles Triay, the founder of Triay Law Office, has specialized in contested wills and trusts for over 30 years. He has provided unsurpassed representation in notable cases throughout northern California. Unlike other law firms, the Triay Law Office gives clients the option to pay probate litigation attorney fees on an hourly or contingency basis. Please contact our probate litigation lawyers to set up a consultation.