FIGHTING UNDUE INFLUENCE
Our Oakland 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.
Proving undue influence can be difficult. However, a knowledgeable probate litigation lawyer can give you an excellent opportunity to resolve the issue. Courts may rely on witnesses who knew your loved one well and may ask them to describe the relationship between your loved one and the person accused of undue influence. If you can prove that your loved one depended or trusted this person or that a medical issue made your loved one vulnerable to influence, the will may be declared defective.
If you are worried about your loved one suffering from undue influence, then the best way to prevent this is frequent and regular communications and visits. Make sure your loved one is comfortable speaking to you about anything that may be bothering him or her. Isolation can leave an elderly person particularly vulnerable to financial exploitation and abuse.
If you believe someone is currently taking advantage of your loved one, then talk to an attorney as soon as possible. A lawyer can work with you to explore your options. If your loved one has a lack of capacity and cannot make rational decisions, then you may need to ask a court to appoint a conservator.
In many cases, relatives may not know what caused a loved one to leave them out of a will until after that loved one dies. Often, the person who commits undue influence attempts to hide the act until the loved one passes. When this happens, family members and others can still take their case to probate court. It may then may result in the judge declaring a will defective.
What constitutes undue influence is a gray area that will always be fact specific. In some cases, an elderly person will alter or update a will to leave a larger gift to a caretaker or favorite relative who has been a source of support near the end of the person’s life. This is not undue influence.
However, if this friend or caretaker used improper means to coerce your loved one to significantly alter the will, this may constitute undue influence. If this person threatens your loved one and forces him or her to change a will, then that is also undue influence.
About Triay Law Office
Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.Read More
Probate Litigation Blog
We have a wide variety of information to share on all subjects regarding probate litigation.Read More
Watch our informational videos.Watch