Don’t Miss! The Difficult Don’t Miss California Undue Influence Cases

[Music] Hi this is Stuart Albertson with Albertson and Davidson and I want to talk to you about one of the more difficult set of cases we come across and I call these the difficult don't miss undue influence cases let me say that one more time the difficult don't miss undue influence case what is the difficult don't miss undue influence case that's where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away and so the question is what can we do to invalidate the trust or the will that the wrongdoer got created using extra exercising undue influence over mom and dad these are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination so you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge a mom or dad's estate but as you can probably imagine if mom or dad has any capacity whatsoever they don't like being told that they don't have capacity and they certainly aren't gonna like that you're the one who is asking the court to find that they are not capacitated so mom and dad can become upset by this the person who's the wrongdoer who's already unduly influenced your mom your mom or dad they're gonna take advantage of this situation and they're gonna point out to your mom or dad that look your son not only doesn't love you and doesn't like you your son wants to take your capacity away your son's trying to get access to your estate before you're even gone this son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them so what are you to do in these type of difficult cases do you file for conservatorship and that's why we call these the difficult don't miss undue influence cases because if you're going to file for conservatorship you have to in it if you don't win it and mom and dad is capacity are still capacitated and a court finds that their capacitated chances are if you were in their trust or well you're certainly not going to be in it now by way of an amendment or a codicil to the well and then you're gonna have a much higher hill to climb after your mom and dad died when you do bring a trust contest or a will contest so what is a better option perhaps and it's hard because sometimes you have to sit back and do nothing while mom and dad are living and what we suggest to many clients is just focus on mom or dad in their sunset years of their life give them comfort give them care give them compassion spend time with them don't talk to them about their trust or their will don't talk to them about their assets as difficult as that may be because the person who is exercising undue influence over them will turn that against you and make it seem like you're the one that's trying to get their assets you're the one that's the greedy heir you're the problem not down so if you can stay disciplined focus on your parents care for them in the sunset years however many months or years they have left then once they pass away there are remedies available to you such as a trust contest a will contest and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime these are very difficult cases it's very difficult to determine the best route to take our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue. [Music] [Applause] [Music]