How to retrieve assets if you've been excluded from a will or trust - Kevin J. Moore & Associates

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How to retrieve assets if you’ve been excluded from a will or trust

When someone has changed a will or trust just a few years before they pass away, this can lead to an accusation that someone has used a position of confidence or authority in order to take unfair advantage. Undue influence is the legal term used to describe this situation.

Undue influence often arises with a husband and wife who have been married for several decades, built a family, own a home, and have some other assets they want to pass on. Typically, they’ve created a trust and have a plan in place, although it’s often decades old. Then, one of them passes away, someone moves in with the survivor and says “Hey, I’m taking care of you now, why don’t you put me on the deed to the house and change your estate plan?” This might be a family member, or an acquaintance, or even an opportunistic stranger.

To prove undue influence in court you need to show more than just an unfair result. Estates are passed on every day in which one sibling gets more or the kids are bypassed in favor of the grandkids.

California law presumes that, if the person drafting a will or trust, their family members, or business partners, receive gifts, there is undue influence. Except for very strict circumstances, this presumption cannot be overcome and thus any inheritance left to such people will be invalid.

It is also easier to prove undue influence in certain other circumstances. This is because there are categories of transfers that, if you can show that the gift falls into one of those categories, the burden of proof shifts to the beneficiary, to prove that it wasn’t the result of undue influence.

One category of presumed undue influence is set forth in California Probate Code § 21380, which lists groups of people who are considered to have benefited from undue influence if they are named in an estate plan. The list includes caregivers. Thus, if caregivers suddenly are named as beneficiaries in an estate plan, the burden of proof shifts to them to show that the gift to them was freely made.

There are certain ways that lawyers show that changes in a will or trust are not the result of undue influence. For example, video of the person from the time of signing a trust or will, testimony from disinterested third parties who knew of the person’s intent to make a gift, or other writings can show that the change made in the will or trust accurately reflects their true intent.

Most cases in which undue influence is at issue are very fact specific. For example, we recently litigated a case in which a client came to us because she and her siblings had been taken out of their widowed mother’s estate plan in favor of the neighbor who had moved in and taken care of her. We gathered the evidence that strongly suggested that the transfer in favor of the neighbor was the result of undue influence. We were, therefore, able to negotiate a favorable settlement on behalf of our client.

Whether or not someone has exerted undue influence on an estate plan is not a question of common sense, so if you have been excluded from a will or trust, or need to defend a change that someone feels is unfair, make sure you seek the advice of experienced counsel.