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Non-English Speakers | Targets of Estate & Trust Scams

Non-English Speakers Trust Estate Litigation.jpgA recent Brookings Institution study estimated that one out of every ten people in the United States is not fluent in the English language. Non-English speakers are vulnerable and immigrants are a "common target for scam artists ... who don't understand our legal and financial systems." Non-English speakers are particularly vulnerable when trying to do estate plans, including wills and trusts.

It is difficult enough for English speakers to understand how to do a Will, a Living Trust or Revocable Trust without guidance. So, imagine that you are a non-English speaker and have no reliable source to explain what legal documents written in English.

Situations like these often end up in litigation after the Will or Trust maker dies and suspicious plans of estate distribution are discovered. The following case illustrates this point.

Jorge, a Mexican immigrant, comes to the United States in 2009. Jorge's two daughters accompany him. Jorge's wife predeceased him in Mexico. Jorge is a native Spanish speaker. He cannot read or write English. He speaks and understands very minimal conversational English.

Jorge is very ill with diabetes complications and requires a caregiver. Jorge asks his caregiver, Valentina, to find him an attorney and arrange for a meeting. Valentina speaks, reads and writes both English and Spanish. Valentina identifies an attorney in Hayward and drives Jorge to the meeting.

The attorney does not speak, read or write Spanish. Jorge hands the attorney a paper written in English that says he "wants to leave his estate" to Valentina.

Following the meeting, Valentina becomes the "communicant" with the attorney. The attorney emails documents to Valentina at her email address. Valentina works with the attorney to set up the attorney's final meeting with Jorge. Valentina drives Jorge to the attorney's office in December 2018.

Valentina, Jorge, the attorney and the attorney's assistant sit in the attorney's conference room to review the estate planning documents. The attorney cannot describe the terms of the estate plan to Jorge - a pour-over will and revocable trust - because the attorney cannot speak Spanish.

The attorney asks his assistant, Greta, to explain the estate plan to Jorge. Greta speaks only a little conversational Spanish. Greta tries to explain the estate plan. Greta cannot translate the trust. Jorge signs the estate planning documents. Jorge dies two months later.

Shortly after Jorge's death, his two daughters find that their father signed an 18-page English language trust that names Valentina as the trustee and primary beneficiary. The primary trust asset is Jorge's home in San Leandro. The trust gives $1000 to each of Jorge's daughters.

Jorge's two daughters seek abused trust beneficiary litigation counsel. California litigation counsel takes the case and civilly prosecutes Valentina for elder financial abuse. The case - after some protracted litigation - ultimately resolves favorably for the daughters.

The drafting lawyer had a hand in this injustice. What should he have done that he didn't do?

What should estate attorneys do when drafting a will or trust for non-English speakers?

  • 1. Attorneys who cannot communicate with their non-English speaking clients need to be cautious about the potential undue influence of the English-speaking person that brings those clients to their law office.
  • 2. Non-English speakers should have the benefit of a translator other than the beneficiary of the estate plan.
  • 3. Whoever is transporting the client should leave the room so that the attorney can communicate directly with the client - obviously with the need of a translator.
  • 4. Attorneys need to be cautious about their estate planning questionnaires - particularly the indicated personal representative and heirs or beneficiaries.
  • 5. Unequal distributions between caregivers, children or natural heirs should be particularly scrutinized.
  • 6. Communications between the initial meeting and later signing meeting should be directed to the client. If not, there should be strong documentation as to why this isn't possible.

So, the above scenario is really a mix from many cases that we've litigated. We've seen similar issues with non-English speakers whose native language was Spanish, Fijian, Vietnamese, Mandarin and Tagalog.

Hackard Law represents foreign, out-of-state and California clients in California related estate, trust, probate and elder financial abuse litigation. We take significant cases where we think that we can make a substantial difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty.

We focus our geographic practice on California's largest urban areas, including Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

If you'd like to speak with us about your case call us at 916-3030. We'll be happy to hear from you.

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