When it comes to estate planning, a settlor, the maker of a trust, or testator, the maker of a will, seek certainty over uncertainty. They take the time to make an estate plan to diminish risks. Once this is accomplished is the estate plan impervious to challenge? In more colloquial terms - is their will and trust bulletproof. And, if not bulletproof, what will it take to make it bulletproof?
My law firm's heavy estate, trust and elder financial abuse litigation caseload precludes an active estate planning practice. Our litigation focus often places a spotlight the actions of estate lawyers prior to and contemporaneous with the preparation and execution of an estate plan. One-hundred percent success in "bulletproofing" such plans is elusive. There is little question that estate planning is helpful, but like all things, it is subject to the intervention of foreseen and unforeseen events. In the lyrics of John Lennon's "Beautiful Boy," "Life is what happens to you while you're busy making other plans."
Those who commence estate planning should have capacity. The maker of a will (testator) or trust (settlor) is presumed to "have the capacity to make decisions and to be responsible for their acts or decisions."
Given the law on capacity, we expect that at first glance the testator or settlor has capacity. This might be the first part of a bulletproof analysis. Some estate planners will engage psychologists, neuropsychologists, or geriatric psychiatrists - psychiatrists focused on "late-life mental health needs" - to assess the mental capacity of their clients. These reports may be helpful in defending estate challenges, but they are not bulletproof. My own experience is that such efforts may simply reflect the estate planner's recognition that the estate plan is problematical and has elements likely to ignite a challenge. These might include disinheritance, disproportionate distributions or provisions to recent acquaintances.
With estate plans and trusts, system failure still happens - elder financial abuse, undue influence and trustee wrongdoing can victimize an elder and jeopardize an entire family's well-being. That's why Hackard Law is dedicated to protecting the interests of heirs and beneficiaries. We represent clients throughout California, including in Los Angeles, Sacramento, Alameda, Santa Clara, and San Diego. Call us today at 916-313-3030. Bulletproofing isn't always possible, you can still act in real time to right the wrong.