Overview
Don’t delay contesting a will or trust.
“When someone seeks to contest years after the death of a loved one, their chances of success are generally bleak. Witnesses forget things or die, or documents become harder to obtain and more difficult to litigate,” says Joshua D. Taylor, a partner at Keystone who supervised the case. “The quicker you come forward with claims, the better — especially if you’re talking about litigation where you want to undo a transaction or documents, or raise capacity issues,” he says.
Our client had been searching for information about his half-brother’s estate for years following his brother’s death. When his search turned up no clear answers, he came to Keystone for help.
Despite having been the decedent’s closest surviving heir, the client had been clueless about what his brother’s estate planning documents contained. This was because the brother’s former caregiver — who, in an unusual twist, had also been his financial adviser — was refusing to provide our client with copies of his estate planning documents.
Keystone’s trust and will dispute attorneys launched an investigation into the case and discovered that the decedent’s caregiver had used a power of attorney to transfer one of his most valuable assets — his home — into a trust that named her as the sole trust beneficiary and trustee.
She also had drafted a questionable will for the decedent in her own handwriting, which left the remainder of his estate to her and her two sons. The documents were signed with either the letter “X” where the decedent was supposed to sign or with nothing at all.
Based on the observations of our client and the decedent’s medical records, it was apparent the decedent had been unable to make important financial decisions on his own at the time the estate documents had supposedly been signed because he had been in a nonverbal, near-vegetative state. Furthermore, to duly execute a will, two witnesses generally are required.
The circumstances surrounding the creation and execution of the decedent’s estate plan were highly suspicious, so we advised our client to contest the trust. While the grounds for contesting the trust were familiar — the decedent had ostensibly lacked the capacity to execute his trust and had been subjected to undue influence — what made this case unique was the overwhelming weight of the evidence in support of these claims.
What Caused the Decedent to Leave His Caregiver Everything He Owned?
A trust is established to protect and hold a settlor’s assets for the benefit of beneficiaries. When the settlor dies, trust assets eventually are distributed to the settlor’s intended beneficiaries in accordance with the provisions of the trust. Unlike wills, trusts generally bypass the court-supervised probate process, which makes them substantially more private than wills.
A decade before he passed away, the decedent had created multiple annuities with the assistance of a financial adviser — whose role would soon expand far beyond its original scope.
The decedent had three siblings: a brother, sister and half-brother (Keystone’s client). All but the half-brother were deceased at the time of the decedent’s death, making our client the decedent’s closest living heir. Even though our client and his brother resided two states apart, they had remained close and regularly kept in touch.
The decedent was a proud man who had accumulated a sizable estate during his long life. And it had been his intention to never execute any estate planning documents so our client could inherit his assets by way of intestate succession.
Once the decedent’s health began to decline, he solicited the help of his financial adviser to assist with his finances and arrange for his daily care, including the hiring and firing of caregivers. Gradually, the financial adviser herself started to assume the role of caregiver. This allowed her to wield substantial control over the decedent’s life.
As the decedent’s health worsened and he fell into a near-vegetative state, the caregiver saw an opportunity to swoop in and unduly influence him into signing away — not with his signature, but with the letter “X” — all of the assets he’d accumulated over the course of his lifetime to her and her two sons. Hours later, she rushed the decedent to the hospital where he was treated and re-diagnosed with advanced end-stage dementia. He would require palliative, end-of-life care.
The caregiver then went even further, drafting the decedent’s will, which she claimed he had dictated to her, in her own handwriting. The purported will had not been duly executed, nor did it contain a date, attesting witnesses, or a legible signature.
While California does allow holographic wills — wills that are handwritten by the will creator (called the testator) — they must meet certain conditions if they are to be recognized as valid. For example, the material terms should be drafted by the testator in their own handwriting. They also should have been drafted at a time when the testator had sufficient capacity to make a will. Additionally, the will should be signed by the testator.
Because this will was not in the testator’s handwriting and purportedly was signed (with an illegible signature) at a time when the testator had not been competent, Keystone argued that it was not a valid holographic will.
Additionally, medical records and testimony from hospital personnel who treated the decedent around the time the estate planning documents had been signed confirmed that the decedent had not been of sound mind. This was further corroborated by the testimony of the decedent’s friends.
When the decedent died shortly thereafter, our client reached out to the caregiver to request copies of his estate planning documents (which he was entitled to receive as his closest living heir), but she refused to provide them to him until he took legal action against her several years later.
“It’s not uncommon in these cases to have somebody who is opportunistic see vulnerability in someone and suddenly become more involved in their personal life to exert undue influence. That was certainly the case here,” Taylor says. “Once the decedent became more susceptible to undue influence, the financial adviser assumed the role of caregiver, and in so doing, inserted herself much more into his life.”
Lack of Capacity and Undue Influence
Will contests and trust contests often involve claims that the subject documents should be invalidated on account of lack of capacity and/or undue influence. These two grounds are closely intertwined, in that a lack of capacity leaves a person more vulnerable to undue influence and other forms of elder financial abuse.
When a will or trust is being contested on account of lack of capacity, it is being suggested that the creator of the document lacked the requisite mental competence — as determined by the law — to execute that particular document.
California law presumes that a person has the ability to make sound decisions and sign documents, such as contracts, wills, trusts and powers of attorney. Thus, the burden of proof to show incapacity falls on the person contesting the will or trust. Trusts require a higher degree of capacity to execute than wills since they tend to be more complex, which sometimes also makes them easier to contest.
Medical documentation and testimony from the decedent’s physicians can be provided to the court to demonstrate that the testator had been cognitively impaired at the time the estate documents were signed. The party contesting the validity of the estate planning documents can also retain a medical expert (typically a geriatric psychiatrist) to review the decedent’s medical records and give their professional opinion surrounding the decedent’s level of capacity when they executed the documents.
When undue influence is the basis for a will or trust contest, it is being suggested that the testator or settlor, respectively, had been subject to excessive persuasion at the hands of another person, which resulted in their drastically changing their estate plan in a way that was not consistent with their true intent.
To confirm that undue influence played a role in the creation or execution of an estate planning document, the court will consider whether the document creator had been vulnerable to undue influence, the apparent authority of the influencer, the actions taken by the influencer to persuade the document creator, and the equity of the result. In other words, did the bad actor replace the intentions of the document creator with their own intentions?
There are also situations in which a court will apply a legal presumption of undue influence (assuming that certain criteria are met), such that the burden of proof would switch to the alleged influencer. One such situation is when the non-relative drafter of a decedent’s estate plan is also an estate beneficiary or trust beneficiary under that estate plan — as was the case here with the handwritten will.
Complete lack of capacity does not have to be proven in order to successfully prove undue influence, but it usually needs to be shown that the decedent did not have the mental competence necessary to adequately protect themselves against undue influence.
In this case, there was ample evidence to show the decedent’s cognitive abilities had been impaired to the point he had been susceptible to the undue influence of his opportunistic financial adviser-turned-caregiver, and that he had been incapacitated outright.
Results
Ultimately, Keystone reached a favorable settlement for its client. Not only did he receive the majority of the decedent’s liquid assets, but he also received a settlement sum that was paid by the opposing party directly.
The Takeaway
This case was remarkable in that the decedent’s caregiver had also previously acted as his financial adviser. As such, she was fully aware of his financial situation and preyed on his vulnerabilities in order to steal his hard-earned fortune for herself. The worst part? She almost got away with it. Luckily, despite the caregiver’s initial refusal to cooperate with Keystone’s client, the client did not give up, seeking the help of Keystone’s probate attorneys to recover the inheritance that was rightfully his.
It’s not always easy to contest a will or trust and win, but a person’s chances increase significantly if they have a skilled legal team representing them. Keystone’s client, for example, was fortunate that his case was able to be resolved favorably, even though he waited years after his half-brother’s death to bring his claim.
Ideally, the client would have hired a probate firm immediately following his brother’s passing, as they could have helped him obtain copies of the decedent’s estate plan from the caregiver early in the process. As a general rule, the earlier you involve a lawyer in estate and trust matters, the better. Once trust or estate administration starts, it becomes significantly more difficult (and potentially impossible) to challenge the validity of th document at issue. Even if you are unsure about whether a decedent’s will or trust is problematic, it is never a bad idea to have a qualified lawyer look over it.
“What this case shows is that you have to be careful with whom you trust with your financial secrets,” Taylor says. “It’s very important to have trustworthy people involved in administering your estate and in providing a level of oversight.”
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Estate and trust matters are Keystone attorneys’ bread and butter. Because they practice exclusively in probate law, they’ve managed to develop an understanding of their field that largely goes unmatched. With years of experience and a dedication to constantly enhancing their legal knowledge, Keystone’s probate lawyers are sure to help you reach a favorable outcome to your case.
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