Undue Influence & Capacity | Trust Litigation
- May 15, 2018 - Elder Financial Abuse, Trust Litigation,
I listen to hundreds of stories every year. There are dozens of cases for every element of vulnerability. The stories surrounding each element often provide a foundation for the failure of an estate plan that someone tried to make bulletproof.
So what kind of stories do I hear about capacity and the other elements of an undue influence claim? Let’s start with capacity, which is where estate and trust litigators first look. For wills the standard questions are whether the individual had sufficient mental capacity to be able to understand the testamentary act, the nature of their property and the memory of the individual’s relations to their family. I hear plenty of stories where the individual thinks that their long-deceased spouse is living, their children are unrecognized or there is little self-awareness. Delusions and hallucinations of all kinds may abound.
Illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency are other factors used to evaluate undue influence. Of these the common elements from stories include illness, age, impaired cognitive ability, emotional distress, isolation and dependency. Wrongdoers regularly isolate their victims – cut off telephones, prevent entry into the elder’s house, use baby monitors to spy on conversations and threaten catastrophe if the isolation is pierced.
Dependency is another common factor. It’s in this situation that the tables can turn. A jobless substance abuser – most often a child or grandchild – is often a longtime resident of an elder’s home. Lacking independent financial means, the abuser lives off the elder, taking food and shelter without compensation. As the elder ages, they become more dependent on the person who is financially dependent on them. Given the elder’s dependence, a wrongdoer can threaten the loss of home or freedom if the wrongdoer is not given the house, other assets or the entire estate. Unfortunately, this happens with regularity.
The importance of family and caring become even more evident in the stark context of estate disputes. Ultimately, I hope we see that for happiness and a strong sense of gratitude, there are more important things than bullet-proofing our estates – and not coincidentally, these factors can go a long way in preventing exploitation in the first place.
If you have a story of undue influence or elder financial abuse in an estate or trust that you need to tell, you can call us at Hackard Law: 916-313-3030. We represent beneficiaries throughout California, including in Sacramento, Los Angeles, Santa Clara, Alameda, and San Diego. We look forward to hearing from you.
Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]
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