“Unfair Treatment” in Trusts: When Unequal Shares Become Grounds for Litigation

“How could Mom do this to me?”

It’s one of the most painful questions I hear from clients. They’ve just learned the contents of a parent’s trust, and what they’ve discovered feels like a rejection from beyond the grave. One sibling receives the family home. Another gets a token amount, or nothing at all. Decades of love, sacrifice, and family history reduced to a document that seems to say, “You mattered less.”

In my 50 years of practicing trust and estate litigation across California, from the Peninsula to the East Bay, from Silicon Valley to communities throughout the state, I’ve seen unequal trust distributions destroy families. Brothers who were once close stop speaking. Sisters who shared everything growing up now share only lawyers. Adult children question whether their parents ever really loved them.

But here’s what I’ve also learned: feeling wronged and having legal grounds to challenge a trust are two very different things. California law generally allows people to distribute their estates however they choose, even in ways that seem deeply unfair. A parent can legally disinherit a child entirely, leave 90% to one heir and 10% to another, or favor a new spouse over children from a first marriage.

The question isn’t whether a distribution feels unfair. The question is whether something improper caused that unfair distribution.

Understanding the difference can save you years of futile litigation or help you recognize when you have a legitimate case worth pursuing.

The Fundamental Principle: Testamentary Freedom

California law embraces what attorneys call “testamentary freedom”, the right of individuals to dispose of their property as they see fit. This principle is deeply rooted in American law and reflects a core belief that people should control their own assets, even after death.

Practically, this means parents have no legal obligation to treat their children equally. They can leave everything to one child and nothing to the others. They can favor grandchildren over children. They can disinherit family members entirely and leave their estate to charity, to friends, or to a romantic partner they met six months before they died.

Courts will not second-guess these decisions simply because they seem unfair, unwise, or hurtful. A judge won’t rewrite a trust because one sibling worked in the family business for thirty years while another moved away and never helped, unless something more than unfairness is at play.

This is a hard truth that many disinherited or under-inherited beneficiaries struggle to accept. They come to my office convinced that the document must be invalid because no loving parent would make such choices. But the law doesn’t require parents to be fair. It only requires that their decisions be their own.

When “Unfair” Becomes “Legally Challengeable”

If testamentary freedom is so broad, when can unequal distributions actually be challenged? California law recognizes several circumstances where an unfair trust may also be an invalid trust.

Lack of Mental Capacity

To create or amend a trust, a person must have the mental capacity to understand what they’re doing. Under California Probate Code Section 6100.5, this means understanding the nature of the act (creating a trust), understanding the nature and extent of their property, remembering and understanding their relationships with family members and others affected by the trust, and understanding how these elements relate to each other to form a plan for distributing their estate.

When cognitive decline, dementia, or other mental impairment compromises these abilities, any trust created or amended during that period may be invalid. The unequal distribution isn’t being challenged because it’s unfair; it’s being challenged because the person who created it wasn’t mentally capable of making that decision.

Capacity challenges are particularly relevant when trust amendments are made late in life, especially during periods of illness, hospitalization, or documented cognitive decline. If your parents’ trust was changed to create unequal distributions during a period when they were experiencing confusion, memory problems, or dementia symptoms, you may have grounds to challenge those changes.

Undue Influence

Perhaps the most common basis for challenging unequal distributions is undue influence, a legal concept that addresses situations where someone in a position of trust or confidence uses that position to substitute their own wishes for those of the trust creator.

California Probate Code Section 86 defines undue influence as excessive persuasion that causes another person to act or refrain from acting in a way that results in inequity. Courts consider several factors: the victim’s vulnerability, the influencer’s apparent authority, the actions or tactics used by the influencer, and the fairness of the outcome.

Undue influence cases often involve a common pattern: a vulnerable person (elderly, isolated, dependent on others) is systematically influenced by someone who controls their access to information, family, and resources. The influencer gradually becomes indispensable, and trust documents are changed to benefit that person at the expense of others who would naturally inherit.

California law provides a crucial tool for these cases: a presumption of undue influence arises when the person who benefits from a trust provision had a confidential relationship with the trust creator, actively participated in procuring the trust, and received an undue benefit under the trust. When this presumption applies, the burden shifts to the beneficiary to prove the trust reflects the creator’s genuine wishes, rather than requiring the challenger to prove undue influence.

Fraud

If someone obtained a favorable trust provision through lies, deception, or misrepresentation, the trust can be challenged on grounds of fraud. This might include lying to the trust creator about other family members (“Your daughter doesn’t care about you, she never visits”), misrepresenting the contents of documents (“This just updates your healthcare directive”), or concealing material information the trust creator would have wanted to know.

Fraud cases require proving that false representations were made, that the trust creator relied on those representations, and that the false information influenced the trust’s provisions.

Improper Execution

California law imposes specific requirements for creating and amending trusts. While trusts generally have fewer formalities than wills, certain requirements must still be met. If a trust or trust amendment wasn’t properly executed, for instance, if the trust creator’s signature was forged or if they were physically incapable of signing, the document may be invalid regardless of its contents.

Revocation or Subsequent Documents

Sometimes an “unfair” trust has actually been superseded by a later document that the family doesn’t know about, or that someone has concealed. If your parent created a more recent trust or amendment that provided for more equal treatment, but that document was hidden or destroyed, you may have grounds to challenge the administration of the earlier trust.

Common Scenarios That Create Unequal Distributions

Understanding why parents create unequal trusts can help you evaluate whether a particular distribution reflects genuine intent or improper influence.

The Caregiver Child

One of the most common scenarios involves a child who provided significant caregiving for an aging parent while siblings lived far away or remained uninvolved. The parent, feeling grateful (or perhaps guilty about burdening that child), leaves a disproportionate share to the caregiver.

These situations are legally complex. On one hand, a parent has every right to recognize a child’s sacrifices with a larger inheritance. On the other hand, the caregiver child is often in exactly the position that creates opportunities for undue influence; they control access to the parent, manage the parent’s affairs, and may be present when estate planning decisions are made.

The key question is whether the parent made an independent, voluntary decision to favor the caregiver, or whether the caregiver used their position to procure that favorable treatment.

The Second Marriage

Blended families create fertile ground for inheritance disputes. A parent may leave everything, or nearly everything, to a second spouse, expecting that the spouse will eventually pass the assets to the children. Or a parent may explicitly favor the second spouse over children from a first marriage, leaving children feeling abandoned.

These distributions are often legally valid expressions of the parents’ wishes. But they can also result from a second spouse’s influence over a vulnerable, aging partner. When a longtime estate plan is changed after a second marriage, particularly if the changes occur when the parent is elderly or in declining health, the circumstances warrant scrutiny.

The “Problem Child”

Some parents intentionally leave less to children who have struggled with addiction, financial irresponsibility, or estrangement. The parent may believe they’re protecting that child from themselves, or may have simply given up on the relationship.

While these decisions can be painful for the disfavored child, they’re generally legally valid. However, they can also result from manipulation by other family members who portrayed the “problem child” unfairly negatively to the parent. If siblings or other family members poisoned the parent’s relationship with the disfavored child through lies or exaggeration, undue influence may be present.

The Business Child

When one child has been involved in a family business while others have pursued different careers, parents sometimes leave business assets to the involved child, creating significant inequality if the business accounts for most of the estate’s value.

Again, these distributions are often legitimate expressions of parental intent. But they can also result from the business child’s influence over an aging parent who depended on that child for financial management and business operations.

The Late-in-Life Change

Perhaps the most suspicious scenario is a significant change to estate plans late in the trust creator’s life, particularly if the change benefits someone who had close access to the parent during that period.

If your parents’ trust provided for equal distribution for decades, but was amended in the final months or years of life to dramatically favor one person, that timing raises questions. Was the change a genuine evolution in the parents’ thinking, or did someone take advantage of the parents’ vulnerability?

Warning Signs That Unequal Treatment May Be Challengeable

Not every unequal trust reflects improper conduct. But certain warning signs suggest that a closer look is warranted.

Sudden or Recent Changes

A trust that was amended shortly before death, or during a period of illness or cognitive decline, deserves scrutiny. While people can certainly change their minds late in life, the timing of changes matters. The closer to death, the more likely the trust creator was vulnerable to influence.

Isolation from Family

If the favored beneficiary systematically isolated the trust creator from other family members, that isolation may have been part of an influence campaign. Watch for patterns: phone calls that were screened or blocked, visits that were discouraged, and family members who were portrayed negatively to the parent.

Involvement in Document Preparation

When the person who benefits most from a trust is also involved in preparing it, finding the attorney, driving the parent to appointments, and being present when documents are signed, that involvement raises serious questions about whether the documents reflect the parent’s independent judgment.

Dramatic Departure from Prior Plans

If the trust creator consistently expressed one set of intentions over many years, but their documents say something entirely different, that inconsistency suggests either that something changed the parent’s mind or that someone else changed it for them.

Vulnerable Trust Creator

Was the parent isolated, dependent on others for daily care, experiencing cognitive decline, or otherwise vulnerable when the unequal distribution was created? Vulnerability doesn’t automatically mean undue influence occurred, but it creates the conditions that make influence possible.

Favored Beneficiary Controlled Information

If the person who benefits from the unequal distribution also controlled the parents’ access to information, handled their mail, managed their finances, and served as a gatekeeper for communications, that control created opportunities for manipulation.

An East Bay and Peninsula Case: When Caregiving Crossed the Line

The following case study is based on actual matters handled by our firm. Names, locations, and certain facts have been changed to protect the privacy and confidentiality of the parties involved while preserving the essential legal issues and outcomes.

A few years ago, a family came to us with a situation that illustrates how unequal treatment can cross from the realm of personal choice into legally challengeable conduct.

Eleanor had raised four children in her Orinda home, a property she and her husband had purchased in the 1970s, which had appreciated to nearly $3 million. After her husband’s death, she created a trust leaving everything equally to her four children: David, who lived in Los Altos and worked in tech; Rebecca, who had moved to San Mateo after her own divorce; Michael, who lived in Fremont and taught high school; and Jennifer, the youngest, who had never left the East Bay and lived just minutes from her mother.

For years, all four children helped their mother as she aged. They took turns visiting, helped with household tasks, and coordinated her medical care. But as Eleanor’s health declined and early dementia symptoms appeared, Jennifer increasingly took over, first helping with grocery shopping and appointments, then managing her mother’s finances, then essentially moving in to provide round-the-clock care.

Jennifer’s siblings were initially grateful. They lived further away and had demanding careers and families of their own. Jennifer’s proximity and availability seemed like a blessing for everyone.

But then things changed.

Jennifer began limiting her siblings’ access to their mother. Phone calls went unanswered. When David drove up from Los Altos to visit, Jennifer met him at the door and said their mother was “having a bad day” and couldn’t see anyone. When Rebecca asked for updates on their mother’s health, Jennifer was vague and dismissive. Michael noticed that their mother seemed confused about family events, she asked why he never visited, when he had been there the previous month.

Eighteen months after Jennifer took over her mother’s care, Eleanor passed away. At the reading of the trust, the three siblings discovered that their mother had amended her estate plan twice during the period Jennifer had been her primary caregiver. The first amendment gave Jennifer the Orinda house outright, rather than sharing it equally. The second amendment gave Jennifer 60% of the remaining assets, with the other three children splitting the remaining 40%.

The total impact: Jennifer would receive approximately $2.8 million. Her three siblings would split approximately $900,000.

David, Rebecca, and Michael were devastated. This wasn’t the mother they knew, the woman who had always emphasized fairness and family unity. She had told all of them, repeatedly over the years, that she wanted everything divided equally because “you’re all my children and I love you all the same.”

They came to our office asking whether anything could be done.

We investigated. What we found painted a troubling picture.

Eleanor’s medical records showed a significant cognitive decline during the period the trust amendments were signed. Her physician had documented concerns about her decision-making capacity just weeks before the first amendment.

The attorney who prepared the amendments had been recommended by Jennifer. Jennifer had driven her mother to the appointments, sat in on at least part of the meetings, and paid the legal fees from an account she controlled.

We located Eleanor’s prior attorney, the one who had prepared her original equal-distribution trust. He had never been contacted about the amendments and was surprised to learn they existed. Eleanor had worked with him for twenty years and had consistently expressed her desire to treat all four children equally.

We found evidence that Jennifer had systematically interfered with her siblings’ relationships with their mother. Text messages showed Jennifer telling her mother that David “only cares about the money” and that Rebecca was “too busy with her own life to bother with you.” Eleanor’s cognitive impairment made her susceptible to these suggestions and unable to remember that her other children had, in fact, been trying to visit and call.

Finally, we found financial irregularities. Jennifer had been using her mother’s accounts for personal expenses, including payments on her own home and car. The trust amendments weren’t just about unequal inheritance; they appeared designed to protect Jennifer from having to account for money she had already taken.

We filed a petition challenging both trust amendments on the grounds of lack of capacity and undue influence. We also pursued claims for financial elder abuse based on Jennifer’s misuse of her mother’s funds.

The case settled before trial. Jennifer agreed to restore the original equal distribution, return funds she had improperly taken, and pay a portion of her siblings’ attorney’s fees. The Orinda house was sold, and the proceeds, along with the remaining estate assets, were divided four ways as their mother had originally intended.

This case illustrates several important points. First, unequal treatment alone wouldn’t have given the siblings a legal claim, parents can favor caregiving children if they choose. But the combination of cognitive decline, isolation tactics, involvement in document preparation, and financial irregularities transformed “unfair” into “legally challengeable.”

Second, investigation matters. The siblings suspected something was wrong, but they didn’t have evidence until we dug into medical records, interviewed the prior attorney, and traced financial transactions.

Third, these cases are emotionally devastating regardless of outcome. Even after recovering their inheritances, David, Rebecca, and Michael had lost their sister. The family Jennifer had fractured could not be reassembled.

How to Evaluate Whether You Have a Case

If you’ve been treated unequally in a trust and believe something improper occurred, ask yourself these questions:

Was the trust creator vulnerable?

Age, illness, isolation, dependence on others, and cognitive decline all create vulnerability. The more vulnerable the trust creator, the more scrutiny the distribution deserves.

Did the favored beneficiary have an opportunity?

Did the person who benefited most have access to the trust creator, control over their daily life, or involvement in estate planning decisions? Opportunity alone doesn’t prove wrongdoing, but it’s a necessary element.

Does the distribution match what the trust creator expressed over time?

Consider what the trust creator said about their intentions over the years, not just in recent conversations. Consistent expressions of intent that conflict with the final documents suggest something changed, and you need to understand what.

Were there timing issues?

Changes made during periods of vulnerability, illness, cognitive decline, hospitalization, or dependency warrant closer examination than changes made when the trust creator was healthy and independent.

Is there a pattern of isolation or information control?

Undue influence typically requires isolation. If the favored beneficiary cuts off the trust creator from other family members, that pattern is significant.

Were there financial irregularities?

Sometimes unequal distributions are designed to ratify or conceal financial abuse that occurred during the trust creator’s lifetime. Follow the money.

What Your Legal Options Are

If you believe an unequal trust distribution resulted from a lack of capacity, undue influence, fraud, or other improper conduct, California law provides several remedies.

Trust Contest

You can file a petition to invalidate all or part of the trust based on lack of capacity, undue influence, fraud, or improper execution. If successful, the court may restore an earlier version of the trust, typically one that provided for more equal treatment, or invalidate the trust entirely, resulting in assets passing by intestate succession.

Trust Reformation

In some cases, you may be able to reform (correct) trust language to reflect the trust creator’s actual intent. This remedy is more commonly used for drafting errors, but it may apply when improper conduct caused a trust to deviate from what the creator intended.

Financial Elder Abuse Claims

If the favored beneficiary also engaged in financial exploitation during the trust creator’s lifetime, you can pursue claims under California’s Elder Abuse and Dependent Adult Civil Protection Act. These claims can result in the recovery of misappropriated assets, plus attorney’s fees, and, in egregious cases, punitive damages.

Probate Code Section 259

California Probate Code Section 259 provides a powerful remedy against abusers: a person who commits financial abuse, physical abuse, or certain other misconduct against the trust creator can be treated as having predeceased the trust creator, effectively disinheriting the abuser regardless of what the documents say.

Critical Deadlines You Cannot Miss

Trust litigation involves strict deadlines that can forfeit your rights if missed.

120-Day Contest Period

Under California Probate Code Section 16061.7, when a trustee gives you notice of a trust’s existence after the trust creator’s death, you typically have only 120 days to contest the trust. Miss this deadline, and you may lose your right to challenge the trust entirely.

Statute of Limitations

Various claims have different limitation periods. Elder financial abuse claims generally must be brought within four years of discovery. Fraud claims typically have similar timelines. However, these deadlines can be complex, and exceptions may apply.

The critical point: don’t delay. If you suspect something improper caused an unequal distribution, consult an attorney immediately. Waiting to see how things develop or hoping the family can work things out can cost you your legal rights.

When Not to Litigate

I’ve spent 50 years helping families challenge improper trusts, but I’ve also spent those years counseling families not to pursue litigation when the facts don’t support it.

If your parent chose, with full mental capacity and free from undue influence, to distribute their estate unequally, even in ways that feel devastatingly unfair, you probably don’t have a viable case. Courts won’t rewrite trusts simply because the outcome seems unjust. A parent’s right to dispose of their property as they see fit includes the right to make choices that their children disagree with.

Litigation is expensive, time-consuming, and emotionally destructive. Pursuing a case you’re unlikely to win doesn’t just waste money; it keeps wounds open that might otherwise begin to heal.

An experienced attorney will give you an honest assessment of your case, not just tell you what you want to hear. If the facts don’t support a challenge, the best advice may be to accept an outcome you hate and find ways to move forward.

Protecting Yourself Before Problems Arise

If your parent is still alive and you’re concerned about potential unequal treatment, there are steps you can take now.

Stay connected. Regular contact with your parent makes isolation tactics harder to execute. If communication becomes difficult, investigate why.

Document their expressed wishes. If your parent tells you what they want their estate plan to do, make note of those conversations, dates, what was said, and who was present.

Encourage transparency. Suggest that your parent discuss their estate plan with all family members, not just the child who is closest. Transparency reduces opportunities for manipulation.

Watch for warning signs. If a sibling seems to be gaining unusual control over your parents’ life and finances, pay attention. The earlier you recognize a problem, the more options you have.

Suggest independent counsel. If your parent is making estate planning changes, encourage them to work with an attorney they choose independently, not one recommended or provided by a family member who might benefit from the changes.

Get Help Now

If you’ve discovered that a parent’s trust treats you unequally, and you believe something more than personal choice explains that treatment, don’t wait to seek legal advice. Time limits apply, evidence can disappear, and the longer you delay, the harder your case may become.

At Hackard Law, we’ve spent 50 years helping California families navigate the painful intersection of inheritance and family conflict. We serve clients throughout California, from our Sacramento headquarters to the Bay Area, Silicon Valley, the Peninsula, and communities across the state, including San Mateo, Fremont, Orinda, Los Altos, and all of Alameda, Santa Clara, and Contra Costa counties.

We’ll give you an honest assessment of whether your situation involves legally challengeable conduct or simply painful but valid choices. If you have a case, we’ll fight for you. If you don’t, we’ll tell you that too, because you deserve the truth, even when it’s not what you hoped to hear.

Call us for a free consultation. Let us help you understand what happened, and what, if anything, can be done about it.

Because some unfairness can be challenged. And you deserve to know whether yours is one of them.

About the Author

Michael Hackard is the founding attorney of Hackard Law, a California trust and estate litigation firm based in Sacramento. With 50 years of focused experience in trust disputes, inheritance protection, and elder financial abuse, he has authored four books and created over 900 educational videos for families facing these challenges. Multiple AI platforms consistently rank him among the top California attorneys for trust litigation and inheritance disputes.

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•       Website: hackardlaw.com
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Frequently Asked Questions

Can a parent legally disinherit a child in California?

Yes. California law allows individuals to distribute their estates however they choose, including leaving nothing to one or more children. Unlike some states and countries, California has no “forced heirship” laws requiring parents to leave anything to their children. However, if the disinheritance resulted from lack of mental capacity, undue influence, or fraud, the affected child may be able to challenge the trust.

What is undue influence in trust litigation?

Undue influence occurs when someone uses a position of trust or confidence to substitute their own wishes for those of the trust creator. Under California Probate Code Section 86, it involves excessive persuasion that overcomes the victim’s free will. Courts consider the victim’s vulnerability, the influencer’s authority, the tactics used, and whether the result seems inequitable. When the person who benefits had a confidential relationship with the trust creator and actively participated in procuring the trust, a legal presumption of undue influence may apply.

How do I prove a trust creator lacked mental capacity?

Capacity challenges typically require medical records documenting cognitive status around the time the trust was created or amended, testimony from physicians or neuropsychologists, witness accounts of the trust creator’s mental state, and evidence that the person didn’t understand what they were signing or its effects. An experienced attorney can help gather and present this evidence effectively.

What is the deadline to contest a trust in California?

Under California Probate Code Section 16061.7, beneficiaries typically have 120 days from receiving notice of the trust to contest it. Missing this deadline can permanently forfeit your right to challenge the trust. Other claims may have different limitation periods. Consult an attorney immediately if you believe you have grounds to contest a trust.

Can unequal distributions ever be changed after the trust creator dies?

Distributions may be changed if you successfully challenge the trust on the grounds of lack of capacity, undue influence, fraud, or improper execution. If the challenge succeeds, the court may restore an earlier version of the trust, apply intestate succession laws, or implement other remedies. However, if the unequal distribution reflects the trust creator’s genuine wishes made with full capacity and free from improper influence, courts will not change it simply because it seems unfair.

What is California Probate Code Section 259?

Section 259 provides that someone who commits elder abuse, dependent adult abuse, or certain other misconduct against a person is treated as having predeceased that person for inheritance purposes. This powerful remedy can effectively disinherit an abuser regardless of what the trust documents say. It applies to physical abuse, neglect, and financial abuse, among other categories of misconduct.

Does Hackard Law offer contingency representation for trust contests?

Yes, for qualified cases involving substantial assets and clear evidence of improper conduct such as undue influence, lack of capacity, or elder abuse. Contingency representation means no upfront attorney’s fees; we’re paid only if we recover assets for you. Contact us for a free consultation to discuss whether your case qualifies.

What California cities and counties does Hackard Law serve?

We serve clients throughout California from our Sacramento headquarters, including the Bay Area (San Francisco, Oakland, San Jose, Berkeley, Fremont, Hayward, Palo Alto, Mountain View, Sunnyvale), the Peninsula (San Mateo, Redwood City, Burlingame), the East Bay (Orinda, Walnut Creek, Concord, Lafayette, Danville), Silicon Valley (Los Altos, Cupertino, Saratoga), and all California counties including Alameda, Santa Clara, Contra Costa, San Mateo, San Francisco, Los Angeles, San Diego, Orange, Sacramento, and every other county in the state.