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Presumed Guilty…Don’t let it happen to you!

There are certain people who are presumed to have obtained a gift under a Trust or Will by undue influence. If you happen to be one of these people, be aware that any Trust or Will amended that favors you may be easily overturned.

Who are these special people? In California, a legal presumption of undue influence arises when a person meets the following three criteria: (1) they are in a confidential relationship with the elder (meaning a family member, agent under a power of attorney, trustee, doctor, lawyer, caretaker, etc.), (2) they actively participate in creating a Trust or Will, or an amendment to a Trust or Will, and (3) they unduly benefit from the change in a Trust or Will.

In nearly every Trust or Will contest, this legal presumption of undue influence is argued because it can be a devastating blow. Once the presumption is established, you then have to prove you did NOT engage in undue influence—in other words, you have to prove a negative—and that can be nearly impossible to do.

Obviously, you never want to be the beneficiary of a Trust or Will where you can be accused of having engaged in undue influence. And you certainly do not want a legal presumption of undue influence used against you. The answer, therefore, is to be aware when the presumption applies and avoid any actions that would add credibility to the presumption.

For example, if you are in a confidential relationship with an elder and that elder wants to make a change to his estate plan, don’t prepare the Trust or Will yourself. That may not look too good.

And don’t find a lawyer, talk to the lawyer, tell the lawyer the changes, and do everything with the lawyer before the documents is signed by the elder. That may not look too good either.

Finally, be wary of any plan that substantially increases your share in an estate after a long history of documents that leave assets equally. If the estate is being changed in a big way, especially in a way that disinherits a child or children, then you can guarantee you will have a contest in the future.