Hello, I'm Mike Hackard. I lead Hackard Law, a law firm that focuses on significant estate, trust and elder financial abuse litigation in California. I'm the author of the new book Alzheimer's, Widowed Stepmothers & Estate Crimes, available on Amazon in March 2019.
When elderly loved one loses the capacity to make decisions on an estate or trust, bad things can and do happen. It'll usually be to the advantage of one person and to the detriment of others. These two factors often go hand in hand.
Every week I receive dozens of emails and calls about cases of disinheritance or lost inheritance. I don't need to tell you that the stories are heartbreaking. But if you were to call me about estate wrongdoing or incapacity, I would say this: Before you decide to fight for a lost inheritance, you should understand some basics about the practice of law and our legal system.
Here's an example. If someone walks into a bank with a water gun and demands $50,000 from the teller, it's highly probable that person will end up in jail. Attempted armed robbery is a serious crime and quickly attracts attention from the local police and FBI. But if someone uses undue influence to manipulate a cognitively impaired senior to transfer $50,000 to their account, there is a low probability the wrongdoer will go to jail - and the likelihood is even lower that they'll ever have to disgorge even a penny of their ill-gotten gains.
When it comes to undue influence, there's is no security camera, no witnesses, and often no clear evidence. Who gets to say whether a senior was cognitively impaired? This is a judgment call that isn't always clear-cut. There's a high burden of proof to show:
What is the burden of proof for undue influence?
- That the senior citizen was unduly influenced;
- That the senior citizen was cognitively impaired;
- The senior citizen wouldn't have wanted the transfer anyway.
Source: CA Probate Code Section 21380
As you can see, there's a strict standard for proving undue influence. Looting estate and trust assets doesn't get the same response from authorities as robbing a bank would, but the effects are devastating to the elderly and their families. That's why we act through civil litigation to right the wrong.
If you would like a free digital copy of Alzheimer's, Widowed Stepmothers & Estate Crimes, email us at [email protected] I'm happy to share this book on a very important topic.