Our legal operations continue. We are here for you. Read more

Problems’s Facing the Have Nots: Trust Uses and Abuses Series

If you have been disinherited from a Trust, meaning you were named to receive a gift and then a new document removed you from the Trust, you are a “Have Not.” Have Not’s are typically children who were part of a long-standing Trust until either an amendment or a new Trust came along excluding them from the estate.

Often people who have been disinherited will say that there is no way their mother and/or father would ever intentionally disinherit them. And they may be right in saying that, but unfortunately, that statement alone—even if true—is not enough to overturn a Trust amendment.

Under the law of Trusts in California, any document that is written and signed by your parent is presumed valid until proven otherwise. That means the people in support of the signed document do not have to prove it is valid. Rather, you as the contesting party must prove the signed document is invalid. You have the burden of proof. That’s a bit like one team going into the Super Bowl having three touchdowns already scored before the game even begins. The other team with zero points would have to score three times just to make the game even. And then go on to score again to try to win. It’s an uphill battle.

Keep in mind that under California law a Trust can be amended by a writing signed by the Settlor and delivered to the Trustee. And since a parent is usually a Settlor and Trustee while living, simply signing the amendment is enough to have delivery. There is NO requirement that an amendment be notarized or witnessed. Many people get hung up on the fact that an amendment is not notarized; the law does not require notarization of Trust amendments even though many of them are notarized.

To invalidate a Trust amendment or a new Trust signed before death, you must file a lawsuit where you state a valid legal ground for overturning that type of document. For example, lack of capacity or undue influence are legal grounds for overturning a document. Saying that your parent would never disinherit you is NOT legal grounds for overturning a document. It may be relevant as part of your overall case, but is not grounds enough by itself.

Once you state your legal grounds, then you must go out and find evidence to prove your claims. For undue influence, you must prove four elements: (1) that the elder was vulnerable to undue influence due to either a mental defect (like dementia or stroke), age, illness, etc.; (2) that the wrongdoer had apparent authority over the elder (like an agent under a power of attorney); (3) that the wrong does used certain actions and tactics to coerce the elder into signing the document; and (4) that the end result is inequitable. That’s a lot to prove. And you must have admissible evidence for each of those four items.

How do you compile evidence? Once your lawsuit is filed in court, you can use the Discovery rules to gather evidence. That means things like subpoenas, document requests, interrogatories, requests for admissions, depositions, and all the other devices allowed under the California Discovery Act. But each of these discovery vehicles has their own procedure you must follow, and each takes time to issue and then receive information back in return. It takes time and hard work to find that evidence.

And how do you know when you have enough evidence to win your case come time of trial? You don’t. It’s not just the amount of evidence that matters, it the quality of the evidence. And even more than that, it’s how that evidence is present to the judge at trial. The evidence must be presented in a persuasive light to have the best impact.

The bottom line: being disinherited comes with a big burden. If you are going to fight for your rightful place in your parent’s estate, then you must be ready to dig in and do the work required. That’s where it pays to have a good legal team on your side. Like Albertson & Davidson, LLP, having a team who knows how to successfully handle the complex world of Trusts and Wills is invaluable to you obtaining the best result possible. It may not be easy, but fighting for your inheritance is doable.