Overview
There are certain red flags that can call the validity of a decedent’s will or trust into question. For example, if a will or trust is executed mere days before a decedent’s death and strips the beneficiaries under the decedent’s previous estate planning documents of their inheritances, it would not be stretch to surmise the document may have been obtained through unethical means. Perhaps someone close to the decedent unduly influenced them or perpetrated another form of elder financial abuse against them to compel them to make these changes to their estate plan.
In this Keystone case, the estranged son of the decedent reemerged in the decedent’s life six months before she died to try to get himself named as the sole trust beneficiary of her trust by bringing false allegations of elder abuse against Keystone’s clients — the decedent’s grandchildren — to try to have them disinherited. By claiming the decedent was unable to care for herself or protect herself against physical and financial abuse at the hands of her grandchildren, who had been the primary beneficiaries of her original trust, he was able to obtain a temporary conservatorship, and later, a permanent conservatorship, over the decedent’s person and estate.
These actions set in motion a devastating turn of events that resulted in the decedent’s estranged son taking the decedent to an estate planning attorney to execute a new trust where he would be named as the sole beneficiary. The decedent would die soon after.
When Keystone’s clients learned that their grandmother, who practically had raised them, had cut them out of her new trust, they knew something was amiss and turned to Keystone’s trust and will dispute attorneys for help.
Wrongfully Accused of Financial Elder Abuse
Financial abuse can be as devastating to victims as other forms of abuse. What’s worse, it’s often perpetrated by close acquaintances or family members of the victim. But, unlike physical and psychological abuse, financial abuse is more likely to occur with the tacit acknowledgment and consent of the elderly person — usually as a result of undue influence — which can make it more challenging to detect and litigate.
Because of their old age, and possible social isolation and declining mental competence, elderly and dependent adults are prime targets for financial abuse. Luckily, laws have been put into place to protect these vulnerable members of society.
The court takes charges of elder financial abuse very seriously, regardless of how severe the alleged abuse was or who the accused are. But, what happens when someone has been wrongfully accused of elder financial abuse?
The consequences can be dire for the alleged abusers if a qualified probate lawyer is not retained to defend them.
“A finding of financial elder abuse in the context of a probate action can have serious consequences,” says Joshua D. Taylor, a partner at Keystone who supervised the case. “For example, the court could issue an order prohibiting the abuser from inheriting from the decedent, or the court could order the abuser pay the opposing party’s attorney’s fees, or the court could order the abuser to pay enhanced damages.”
A Closer Look Into Why the Decedent’s New Trust Was Invalid
Keystone’s clients had practically been raised by the decedent after the death of their father, but once the decedent had entered old age, it was they who were caring for the decedent and tending to her needs. They were so close with the decedent she had named them the primary beneficiaries of her trust, despite having a son.
This son, who had been estranged, saw an opportunity to get himself a greater inheritance from the decedent’s trust by falsifying claims of elder abuse against Keystone’s clients and using those claims to petition for conservatorship over the decedent. The son raised enough concern about his mother’s inability to care for herself and protect herself from the alleged abuse of her grandchildren that the court granted him the type of conservatorship he had requested.
For reference, conservators are individuals who have been granted the legal authority to manage the financial affairs and/or daily life of an adult who is is unable to handle these aspects of their lives on their own due to advanced age or physical or mental limitations.
Conservators are fiduciaries, which means that it’s their duty to act in the best interest of the conserved person (called the conservatee) at all times. Unfortunately, there is no guarantee they won’t engage in conservatorship abuse or another form of fiduciary misconduct, as demonstrated by this case.
Just weeks after the decedent’s son was granted temporary conservatorship over his mother, he hired an estate planning attorney to execute a new trust for the decedent — this voided the trust the decedent had executed three years prior. The previous version of the decedent’s trust had left just a fraction of the trust estate to the decedent’s estranged son and the majority of it to the son who hadn’t been estranged. But since the latter son died, his portion of the trust estate was to pass to his children, Keystone’s clients. The new trust, however, stripped Keystone’s clients of their inheritances because it named the decedent’s estranged son as the sole beneficiary.
An investigation by Adult Protective Services found the elder abuse accusations levied against Keystone’s clients to be unsupported. Testimony from the decedent’s court-appointed attorney in the conservatorship action also confirmed that Keystone’s clients had done nothing wrong. What wasn’t up for debate, however, was that the decedent’s mental capacity had been failing — which is why the proposed conservatorship had been granted.
What is unusual about this case is the fact the decedent was permitted to execute a new trust while being under conservatorship without first obtaining an opinion about her competence. To be placed under conservatorship, the court would have had to find that the proposed conservatee lacked the capacity to adequately resist fraud and undue influence, or to make important personal and/or financial decisions independently. And since a requirement for anyone executing a will or trust is that they are competent and free of undue influence, it is logical to assume the decedent lacked the requisite contractual capacity — one of the highest standards of capacity — to execute a new trust.
However, the estate planning attorney who drafted the decedent’s new trust was inexperienced in estate planning and had not been provided with information about the decedent’s mental incapacity when he prepared the trust. Instead, once the new trust was drawn up, he went to the decedent’s hospital room, where she was receiving palliative care, to get her signature on the purported instrument. The decedent passed three days later.
“It is unusual and highly suspect and should have set off red flags with the estate planning attorney,” Taylor says. “One of our arguments in the trust litigation was that because the decedent was under a conservatorship at the time the new trust was signed, that, by itself, should cause the new trust to be invalidated.”
Results
In the end, Keystone successfully defended its clients against the claims of elder abuse, which cleared the way for the clients to receive the majority of the decedent’s assets when the case settled at mediation.
At mediation, Keystone argued that the new trust was invalid on account of the decedent having signed it from her deathbed while under a conservatorship — these facts suggested that the decedent had lacked the capacity to make such a sweeping change to her estate plan.
The Takeaway
Unfortunately, it is not uncommon for an estranged family member to turn up toward the end of an elder’s life and use their influence to compel them to change a will or trust. As in the case of Keystone’s clients, bad actors may even levy false accusations of elder abuse against the decedent’s loved ones to get what they want.
Whether you are bringing a claim of elder financial abuse against someone, or defending yourself against a claim, Keystone’s probate lawyers can help you navigate the process and secure a favorable outcome.
Have an elder financial abuse case on your hands? Learn how we can help.
Did a decedent drastically alter their will or trust at the urging of someone close to them? Do they have assets that cannot be found?
Elder financial abuse is perpetrated against countless vulnerable adults every day. Whether you are a loved one of a decedent trying to recover assets belonging to their estate or trust, or you are yourself a victim of financial abuse, Keystone’s skilled team of probate attorneys can help investigate your claim and recover any assets that were lost to the abuse.
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