What are the chances of a trust being contested based on undue influenceby an executor/beneficiary?

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What are the chances of a trust being contested based on undue influenceby an executor/beneficiary?

My sister is the executor of my mother’s estate. There are 7 of us total. My mother was heavily influenced by my sister – she receives 55%, 3 of us receive 10%, 2 receive 5%, and 2 receive 2.5%. In the event we should die, our share goes back to my sister. The 2 that receive 5% have passed and now my sister gets 65%. My sister was with my mother when she had her Trust done and we believe that she influenced my mother. Do we have any recourse? Should we speak with a probate attorney? In Los Angeles, CA.

Asked on January 29, 2011 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The concept of “undue influence” can be used to invalidate a Will and/or Trust. Under CA law undue influence has been defined as the taking of an unfair advantage of another’s weakness of mind.  Therefore, the Will and/or Trust that the elderly person creates under these circumstances does not reflect the true intent of just how they wanted their estate to be distributed.  In such a situation, beneficiaries and would-be-benficiaries can sue after death and challenge the validity of the Will and/or Trust.

Generally, those who object to the Will and/or Trust provisions have the burden to prove cohercion.  They must demonstrate by "a preponderance of the evidence" that the caretaker exercised undue influence over the decedent.  However, if certain facts are present, the burden of proof can shift to the caretaker.  Once shifted, it becomes the caretaker who must prove that they did not unduly influence the elderly person, and they must prove this by "clear and convincing evidence", which is a higher standard of proof.  This is a nearly impossible task to accomplish since the caretaker must now prove that undue influence was not present.  To shift the burden of proof to a caretaker, it must be proven that the caretaker:

  1. Had a confidential relationship with the maker of the Will and/or Trust;
  2. Participated in the creation of the changed Will and/or Trust; and
  3. Unduly profited from the changed Will and/or Trust.

In your situation, the burden could shift to your sister (the caretaker) if there was a confidential relationship (if your Mom was dependent on her for support and maintenance, which seems a fair assumption under your facts), your sister participated in the creation of the Trust (which she did), and your sister unduly profited by receiving all of the estate (which she does). 

Note:  Even if the burden did not shift, you could still win a lawsuit but it would be much more difficult to do so. 

At this point, you need to speak directly with a probate attorney.  They will be able to review the specific details of the case and best advise you accordingly.


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