Undue Influence in a Trust—A Typical Fact Pattern

An estate or trust dispute often involves complex issues from aggrieved family members going through a difficult and emotionally taxing time. At Hackard Law, we understand the time-sensitive nature of many of these cases. Our experience in this area allows us to handle difficult, high-value trust cases. While no two cases are the same or render the same outcomes, we do find that experience counts. Don't hesitate to contact us today to discuss the facts and circumstances of your case.

Overview of Undue Influence

Undue influence in California is defined as the excessive persuasion that causes a person to act or refrain from acting by overcoming that person's free will, which results in unfairness. Important considerations under this law are:

  1. Vulnerability of the victim: Incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency
  2. Influencer's apparent authority: Fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, etc.
  3. Actions or tactics of influencer:
    1. Controlling personal necessities, medication, interactions with others, access to information, or sleep
    2. Use of affection, intimidation, or coercion
    3. Initiation of personal or property right changes
  4. Equity of the result: Economic consequences to the victim, divergence from prior intent or course of conduct, the relationship of value conveyed to the value of services, or appropriateness of the change in light of the length and nature of the relationship

Many individuals are the victims of undue influence over their trust, will, and other assets because of the pressure of a trusted individual. Vulnerable individuals need to be protected in these situations and an understanding of the law can help avoid confusion over what undue influence actually means. If you or a loved one is the victim of one of these scenarios, don't hesitate to contact Hackard Law.

Trust Challenge Based on Undue Influence

Cases evolve from various facts and circumstances both in and out of the courtroom. A typical fact pattern in an undue influence trust litigation case is explained in the following scenario:

Delta is born in 1928 in California and marries Beau in 1950. Two children are born in the marriage, Ava (born in 1956) and Becky (born in 1958). Delta and Beau sign a will in 1990, leaving each of their estates to one another. Beau dies in 2000. Delta hires Perry to prepare a revocable living trust for her in 2001. Delta is the trustor, trustee, and sole beneficiary during her lifetime. Assets are split between Ava (first successor trustee) and Becky (second successor trustee) into equal shares upon her death. Delta conveys her Moraga home, her bank, and securities account into her trust. Delta also receives Social Security benefits, AT&T pension, and interest on savings and dividends from securities.

In 2010 Delta is treated for high blood pressure. Ava and Becky notice Delta is having trouble keeping a meaningful conversation going. Delta cannot remember recent previous conversations. Delta is unable to recall her grandchildren's names in 2013 at Christmas. Delta repeats questions during any conversation and is losing her short-term memory. Delta's bills are piling up and her banking statements unopened.

Ava drives Delta to her primary care annual check-up soon after Christmas. The doctor report indicates: "PT with dementia. PT has lots of stress as she can no longer drive or shop without assistance. PT is asking for anti-anxiety medication. PT reports weakness, dizziness, and recurrent falls."

Ava and Becky hire a caretaker named Sheila for Delta. Sheila moves in with Delta. Delta is reliant on Sheila for her care. Sheila cuts off Delta's phone communications with Ava and Becky. Sheila convinces Delta to transfer the Moraga house to Sheila, add Sheila to her bank accounts, and amend her trust to make Sheila the trustee and sole beneficiary. Delta dies two months later. Ava and Becky learn of the changes and receive a letter stating: "You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is mailed or personally delivered to you during that 120-day period, whichever is later."

Ava and Becky meet with Hackard Law.

Our experienced California estate and trust lawyers can help you avoid losing your interests as beneficiaries due to illegal activity. The undue influence scenario just described is more common than many realize and often requires attention to details by an attorney skilled in this area of the law. Don't hesitate to contact Hackard Law today in order to protect you and your family's interests.

Protecting Elders From Financial Abuse

Families of elderly individuals need enforceable rules to protect against situations of undue influence. The Financial Industry Regulatory Authority (FINRA) recently defined a new rule that helps to identify potential financial abuse of elderly investors. The new rule defines financial exploitation as:

· The wrongful or unauthorized taking, withholding, appropriation, or use of a specified adult's funds or securities; or

· Any act or omission by a person including through the use of a power of attorney, guardianship, or any other authority regarding a specified adult, to:

o Obtain control, through deception, intimidation or undue influence, over the Specified Adult's money, assets or property; or

o Convert the Specified Adult's money, assets or property.

In addition, the new rule requires securities firms to make reasonable efforts to reach out to a trusted contact person for the impaired individual. The securities firms can also place temporary holds on disbursements of funds or securities where financial exploitation is reasonably believed to be a problem.

Contact an Experienced California Estate and Trust Attorney to Discuss Your Case

Dealing with a bad trustee or a case of undue influence in your family creates a plethora of challenges that can be time-consuming and stressful. Contact us at Hackard Law today for a free consultation with experienced California attorneys in estate, trust, and probate litigation. We regularly represent clients in Los Angeles, Sacramento, Alameda, Santa Clara, and San Diego. Call us at (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or fill out our online contact form today to schedule a free consultation.