Challenging Improper Wills, Trusts, Guardianships, and Estate Planning Documents

Writing a last will and testament is a personal experience and people who write them (testators) should receive full discretion when it comes to how they devise their property after they pass away. While testators can certainly request and heed the advice of loved ones and trusted advisors when drafting or altering a will, the final decisions should be theirs and theirs alone.

In some situations, however, a will may contain provisions or bequests that surprise you and do not seem in line with the testator’s values. If this happens, you should consider whether someone exercised undue influence over the testator. Undue influence goes beyond flattery or suggestions. It involves an influencer gaining a position of trust in the testator’s life and using that position of trust to secure an unfair benefit. Such influence rises to the level of coercion, and an influencer cannot justify this coercion just because the testator agreed to alter a will. Even if a testator seemed to willingly favor the influencer, it can constitute undue influence if the willingness was based on manipulation and coercion.

Someone who unduly influenced a will is unlikely to admit it, and once testators pass away, they cannot give their side of the story. For these reasons, if you suspect that a will is invalid due to undue influence, you need qualified legal assistance to identify and prove it.

At Hackard Law, we regularly represent clients in complex estate litigation, including will contests arising from undue influence claims. Attorney Michael Hackard knows how to recognize and prove undue influence—in fact, he wrote a book about it, The Wolf at the Door. If undue influence caused you harm, we can stand up for your rights.

Please contact our office to discuss your situation today. We serve residents throughout California (including Santa Clara, Pomona, Sacramento, Alameda, and San Francisco).

The following explains the dangerous consequences of undue influence, and how the attorneys at Hackard Law help to prevent its damaging effects.

What Is Undue Influence?

The California Elder Abuse and Dependent Adult Civil Protection Act defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”

Excessive persuasion is a highly subjective term and can vary greatly depending on the circumstances. The Act therefore identifies factors that a court must consider in determining whether someone exerted undue influence to overcome a person’s will. They include:

  • Actions or tactics used by the influencer to control the victim.Examples include withholding food, medication, sleep, and other necessaries of life. Another common tactic is to control the victim’s access to information or interactions with other people. The use of affection, intimidation, or coercion can also overcome a person’s will. Changes in personal or property rights may also indicate undue influence (particularly when the influencer claims expertise in the matter, takes action in secrecy or under claims of time pressure, or initiates them at inappropriate times or places).
  • The victim’s vulnerability, including physical incapacity, mental disability, any injuries that impaired the victim, the victim’s age and education level, emotional distress, whether anybody isolated the victim from other sources of support and information, and whether the victim depended on others to meet important needs. A court may also consider whether the influencer knew or should have known about such a vulnerability.
  • Any apparent authority the influencer had over the victim.Family members, fiduciaries, spiritual advisors, care providers, healthcare professionals, legal professionals, or experts with some other apparent qualifications can exercise such authority.
  • The fairness of the result.While an unfair outcome is not, on its own, sufficient to prove undue influence, it can support claims that inappropriate or unexpected actions resulted in undue influence. Unfair outcomes cast further doubt on questionable actions.

Recognizing Undue Influence

Each undue influence case is unique and fact-driven. Often, there is only a fine line separating legitimate influence by a trusted individual from self-serving undue influence. Undue influence is generally exercised in private so other family members and beneficiaries may not realize that such influence occurred until the probate court receives a will. At this point, the testator can no longer testify to what happened and you must recognize any undue influence from circumstantial evidence.

If you suspect someone wrongfully influenced a will, review your concerns with an attorney who has experience recognizing this type of wrongdoing and a focus on contesting wills. Looking back, you may recognize signs of undue influence even if you did not realize it at the time. Some of these may include:

  • The influencer reduced or stopped calling, visiting, or consulting with other family members or friends
  • The influencer was always present during visits or calls with other loved ones
  • The influencer pushed away family and friends who wanted to help care for the individual and limited help from social workers or other potential caretakers
  • The individual became less independent and more reliant on the influencer’s help
  • The individual acted differently around the influencer
  • The individual checked with the influencer before making everyday decisions
  • The individual did not always know the status of any financial accounts—and the influencer had access to those accounts
  • The influencer either exaggerated praise for the individual to earn trust or wore down the individual with criticism, making the victim feel incapable
  • The individual changed estate planning lawyers based on the influencer’s suggestion
  • The influencer accompanied the individual to all estate planning appointments
  • The influencer began spending unusual or excessive amounts of time with the individual
  • The influencer convinced the individual not to trust other loved ones
  • The individual made gifts to the influencer, which may have started small and gradually increased
  • The individual added the influencer to financial accounts or titles to property

When reviewing a will, you experience shock if someone received a disproportionate and surprising percentage of the estate. If you suspect that the testator would not have independently made such bequests, hire estate litigator Michael Hackard to examine the circumstances of your case.

Proving Undue Influence

While each case will present unique evidence, your attorney must generally prove four main elements to successfully contest a will based on undue influence.

1. The victim’s vulnerability – Many factors can make a testator vulnerable to undue influence, including disabilities, illnesses, diminished cognitive abilities, dependency, emotional distress, fearfulness, and more. It is also important to show that the influencer knew the testator was vulnerable.

2. The influencer’s power – Undue influencers use a position of trust to exercise their influence. Many influencers are family members, caretakers, legal professionals, fiduciaries, or even spiritual advisers.

3. Manipulative tactics – An influencer can psychologically, emotionally, and legally manipulate a testator through many different methods. Many of the above-mentioned signs can indicate the specific tactics used by a specific influencer.

4. An unfair outcome – An undue influence claim must demonstrate that victims suffered losses due to the wrongdoing. This can include exclusion from a will orsignificantly reduced bequeathments or gifts.

Any undue influence litigation will require a substantial discovery period. Your attorney will gather evidence to prove the four above elements and demonstrate the extent of your losses. You cannot get inside the testator’s head and prove his beliefs and intentions, which makes this challenging. However, a lawyer with a focus on estate litigation will know what types of evidence to present to prove your case.

Undue Influence Can Prevent the Honoring of a Person’s Wishes

As you can see, many different actions can overcome a person’s free will. Undue influence thus impairs the victim’s right to choose where to live or how to manage financial affairs, their ability receive health care, and meet the most basic needs of daily life. It can leave a devastating effect on some of California’s most vulnerable residents.

Beneficiaries of a will, trust, or other estate planning documents have a legal interest in the estate of a victim of undue influence. While these property rights are a legitimate cause worthy of defending in court, it is often more important to challenge undue influence to protect the victim from further harm. Even in circumstances where the victim has already passed away (such as the litigation of a will after the victim’s death), survivors can still use legal actions to honor the wishes of the victim.

An Attorney Can Help Challenge Estate Planning Documents, Trusts, and Guardianships Produced by Undue Influence

Undue influence can form grounds for challenging almost any proceeding in the probate courts of California. Potential beneficiaries can challenge trusts that undue influence produced (or that undue influence altered). Heirs and others may challenge state planning documents in probate court at the time they are to take effect.

For example, a healthcare power of attorney is effective when a person is unable to make healthcare decisions. The document thus appoints a person to make such decisions on the patient’s behalf. If undue influence resulted in the signing of such a document, the family could challenge it through an emergency action in the probate court at the time the patient becomes incapacitated.

By contrast, many other estate planning documents (such as last wills and testaments) are only effective upon the death of the person who signs the document (the testator). In this case, heirs cannot challenge the document until the testator’s death. The improper will is submitted to the probate court for acceptance. Potential beneficiaries and others with legal standing can then file challenges to the invalid will.

Certain guardianships and conservatorships are based on the consent of another person. For example, military service members often appoint a friend or family member to act as guardian of their children while they are deployed overseas. This guardianship is based entirely on the parent’s consent, which the parent may revoke at any time. If, however, the consent was obtained through undue influence, then the guardianship is invalid, and it can be challenged.

Experienced Guardianship Litigators to Help Protect a Person’s Wishes

Undue influence can prevent people from carrying out their own wishes in probate documents by overcoming their free will. It is up to loved ones to help prevent undue influence by challenging improper probate documents.

The experienced California probate litigators at Hackard Law can help loved ones identify undue influence and challenge it in probate court. Call (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles (or from anywhere in California), or write to us online to schedule your free consultation with one of our skilled probate litigation attorneys.

Call: 916-313-3030