One looming hurdle in initiating litigation against estate wrongdoers is indifference. That indifference may come from a desire to turn a blind eye to wrongdoing or a strong reticence to initiate an estate fight. These emotions are understandable.
There are many times when indifference must give way to action. The catalyst for action might be a compelling desire to right a wrong committed against a family member, a thirst for justice against a wall of arrogance, or the simple decision to stand for the truth amidst a web of the wrongdoer's lies.
Court action, however initiated, is only part of the battle against indifference. Actions against wrongdoers are often met by counter-accusations. We advise our clients to prepare for such tactics. We have heard more than once from a lawyer representing a wrongdoer that our litigation against a financial elder abuser is extortionate. We consider the source and context of such accusations.
We represent aggrieved heirs, beneficiaries and family members in estate matters. Our decision on representation is not a casual process. We look at the facts and the law of each case that we accept. While not all wrongdoing is the same, estate grievances often fit into patterns. The most common patterns include:
An Elderly Victim: The senior may or may not have capacity. Some lawyers think that the inquiry begins and ends with capacity. It doesn't. California law is clear in undue influence cases. A victim might well have capacity - the ultimate question is not capacity - it is vulnerability. Does the elder have an illness, a disability, an injury, advanced age, limited education, impaired mental abilities, emotional distress, isolation, dependency, alcoholism, substance abuse, or other factors that make him or her vulnerable to a wrongdoer.
The Wrongdoer: Does the wrongdoer have a position as a family member, fiduciary, care provider, health, spiritual, expert or legal professional that allows for some apparent authority over the victim?
Actions or Tactics: Actions or tactics are as varied as the wrongs that one human being may commit on another. Controlling the necessaries of life, medications, interactions with others, access to information or sleep may be part and parcel of undue influence. Affection, intimidation or coercion are the tools of an undue influencer. The initiation of changes in personal or property rights, the transfer of the family home, using haste or secrecy in making these changes, and making changes at inappropriate times and places are often marks of wrongdoing.
Unfairness of Result: Unfairness of result is not the last word in determining undue influence but it is a telling sign of seizing advantage over the elder. Such factors include economic consequences, a change of prior intent or course of conduct or dealing (Mom and Dad always wanted their estate split equally between their three children - Dad dies and then one month before mom's death little brother gets Mom to deed the family home to him). Little brother thinks he's home free - he's not. (Cousin Jenny befriends her Uncle in his last year of life - Jenny takes control of Uncle's financial and social life and removes him from other family contact - the Uncle changes his will so that Jenny gets everything and his own children get nothing at his death.) Jenny will be facing some serious undue influence issues.
If you are an heir or beneficiary and you are seeking counsel for advice to see whether estate changes accomplished by wrongdoing might be reversed and the wrongdoer made to account for his or her conduct, then call us at Hackard Law at (916) 313-3030. We are happy to speak with you.