California estate planning attorneys sometimes get it wrong. When an estate plan is challenged, the plan's defenders often seize upon one issue - the issue of capacity. Such focus rests upon the mistaken belief that a finding of capacity provides an unassailable defense against all estate, trust and probate litigation challenges. It doesn't.
The roots of an estate or trust challenge often germinate in darkness. Fertile soil for estate wrongdoing begins with a vulnerable elder. While an elder might have full capacity to make a will or a trust, such capacity may do little to deflect the onslaught of elder financial abuse. An elder's vulnerability to undue influence may consist of factors not seen by an estate planner at an attorney's conference table. Circumstances of illness, disability, injury, mental impairment, emotional distress, isolation or dependency are not easily identified in attorney office visits - particularly where the elder's visit is arranged by the abuser.
An elder's vulnerabilities are fodder for an undue influencer. A client might say, "Mom was with it" and then with a follow up question may explain that Mom was disabled by illness, medicine, and age or distressed by isolation or dependency. Now as a practical matter, the issue of vulnerability does not arise when estate plans are consistent with a long course of conduct and planning. It does arise when an estate plan changes prior intent and the estate distribution seems inappropriate given the length and nature of the relationship between the elder and the suspected abuser. While there may be little question when an estate is split between three surviving children, big questions arise when a son isolates his parent and influences his parent to rewrite an estate plan to benefit him and exclude his siblings.
Now - as to chaos. Our first calls from abused heirs and beneficiaries are stories of seemingly disconnected facts coupled with conflicting emotions. We talk about things that are known, things that are not known, things that we can know, secrecy, obfuscation and maybe betrayal. I'm not really trying to be dramatic here. It is just that an estate dispute at its beginnings is topsy-turvy - another way of saying it often starts with utter disorder or confusion. Where is the will? Where is the trust? Bank accounts? Title documents? Personal property? Why are we locked out of the house? Why is everything so secretive? Is there a lawyer for the estate? Will the lawyer not respond?
Time, experience and training help us to see patterns where others might see chaos. Most clients have never experienced the struggles, emotions and befuddlement of an estate challenge. They have not had to counsel the aggrieved or formulate a remedy to wrongdoing. This is something that estate, trust and probate litigators do. This is something that Hackard Law does.
If you face the chaos of an estate challenge, a dispute over a trust, or the need to remedy elder financial abuse, call us at Hackard Law: 916-313-3030. We'll be happy to speak with you.