Episode 9–LIVE Suing Attorneys for Mistakes in Trusts and Wills

[Music] Good afternoon and welcome to the Sam fight wind podcast hosted by Albertson and Davidson I'm Keith Davidson I'm Stewart Albertson we want to thank you for joining us afternoon you can find our stamp fight wind podcast live on video on Facebook and YouTube you can also find it recorded after we're done with the live broadcast on Facebook and YouTube you can also find an audio-only version of our podcasts on pod bean or iTunes if you look for the stay in fight win podcast how you doing today sir I'm doing good we've got a lot of places you can go to yeah yeah it'd be really impressive if you went and watched every single one it'd be stunning because the you know if you listen to it once it's it's fun and exciting but five times even better it's every gets even better every time you look at it alright what do we have on this tour today alright so today the topic for today's broadcast is attorney malpractice attorneys doing either intentionally bad things negligent things bonehead things who knows so and the case we're gonna go over in our breaking news segment so let's start with breaking news is actually not maybe the most breaking of news this was decided a while back this is a case that comes to us from a while ago but it is a California Supreme Court case which the California Supreme Court is not weigh in on trusting old cases not that often all that often so this is Lucas V ham and I do have a site for it here somewhere here it is do you have it it's 56 Cal second 583 yeah in this case is from 1961 so breaking news you were in junior high then right yeah no it's not born yet but thank you for thinking I was alright so Lucas V ham is an important case when it comes to attorney malpractice because if an attorney drafts a trust or will and they do it wrong they make a mistake can the trust or will beneficiary sue them for that well and I think that was the issue Lucas versus ham because and let me just set this up from my standpoint here you have a lawyer that's never met a beneficiary of a trust right never talked to a beneficiary of the trust in most cases does this beneficiary who the decedent wanted assets to go to in their trust and the lawyer messes up in the drafting process does this beneficiary who has no contract with the lawyer has never been engaged with the lawyer as the for for any legal purposes does this beneficiary have a right to sue for legal malpractice the estate planning attorney it's the contract part that's the real that's the legal part so from our legal perspective we call that privity of contract and so the beneficiary the people I'm sorry what was that again privity of contract I missed that day in law school apparently privity of contract okay right that's you know does that mean being locked at the hip I passed the bar in the first try okay everybody the yeah so if the the client in the estate planning attorney they had a contract they had an agreement and the agreement required that the attorney talked to the client and see what their intentions are with their trust of will and then they draft something to put those intentions into force that's right but the beneficiary and the attorney did not have an agreement did not have a contract the attorney never worked for the beneficiary and so prior to Lucas V ham the courts in California said well beneficiary cannot sue an attorney for drafting a trust of will and properly because there was no agreement between the beneficiary and the attorney and okay and who was the only person who could sue theoretically at that time the client who now was deceased it makes it makes it tough to follow a lawsuit when you're diseased it's decidedly harder not right to your pass so under Lucas v ham the attorney drafted a will the plaintiffs in that case were supposed to get 15% of the estate they lost out on $75,000 because the attorney drafted it improperly violated the rules against perpetuities which is another arcane issue that you only see on law exam I actually missed that in law school as well yeah that's because you went to law school in Louisiana that's true they had them we don't we don't write Oh California we do but nobody understands it and so the attorney drafted it wrong and these people lost out on their 15% which was to the tune of $75,000 which was a lot more money in 1961 that is today but they sued the attorney and the lower courts said no you can't sue the attorney even though the attorney made a mistake even though they should have drafted this better because there's no privity of contract because there's no perfect between the beneficiary and the draft attorney right all right goes up to the California Supreme Court and the California Supreme Court reverses and says no actually we are going to allow the beneficiaries to sue the attorney because they are what we call intended beneficiaries meaning that when the client contracted with the attorney to draft the trustor will he did it with the intent of beneficiary benefiting benefiting the people who were named in the trust of will right and so it was very clear that those people were supposed to benefit from this contract with the lawyer to draft this trust or will properly and as intended beneficiaries the beneficiaries under the trust or will who got who lost out on their inheritance could sue the drafting attorney whole new body of law opened up yeah and it was an important body of law now that doesn't mean that the beneficiaries can sue in every case there does have to be a clear connection of intended beneficiaries that somebody was intended to benefit from this but trust the Wills I think are the one area of the law where intended beneficiaries are the most obvious right I would think so yes because that's exactly what it is now the interesting thing about Lucas Bham is even though the Supreme Court found that there was a right to sue in this particular case the attorney was not held liable because the will violated the rule against perpetuities and the rule against perpetuities is such a confusing area of the law even for lawyers that they said well the lawyer we're not gonna hold a lawyer liable for this mistake because lawyers aren't liable for every mistake that is made right right they're only liable for mistakes where somebody in that community a similar lawyer wouldn't have made a reasonably would not have made that same mistake that's right so this Lucas v Ham then opens up the world of malpractice actions and so does that now mean that every beneficiary who is this heritage can sue a drafting attorney no you have to have facts that support the doctrine outline and Lucas versus ham that you are an intended beneficiary the decedent intended this to happen and the but for the attorneys mess up or mistake that you would have received a gift and now you're not receiving the gift because the lawyer just plain screwed up and so now you have a cause of action against a lawyer for legal malpractice and let me point out that just because you have a claim for legal malpractice doesn't mean you're gonna win first of all insurance companies that defend the lawyer the estate planning lawyer being sued for malpractice they they can test these type of lawsuits very strongly sure and they make most of them go to trial right unless the facts are so dead to rights that everyone will agree that the lawyer really did truly mess up secondly legal malpractice that's not a new doctrine we've been we've been you've been able to sue lawyers since lawyers were we're providing services to people it's just in this context you have an intended beneficiary but if we just look at the plain vanilla trust a legal malpractice case they're very difficult to win even when you have good facts they're a difficult case to win and why are they difficult case to win so let me give you a hypothetical okay let's let's test a couple of hypotheticals maybe that'll prove the point but all right let's say I you know I'm supposed to inherit from my mother and let's say she goes to an attorney and she leaves everything to my sister but I think my mom lacks capacity and didn't know what she was doing at the time that she signed this trust that leaves everything to my sister right can I sue the attorney for malpractice because he did a new trust that didn't meet my mom's intent well you're not gonna win that lawsuit you certainly could be a fool and file it but no you would have no legal standing our legal basis let me put it that way to file a lawsuit against that lawyer why not he drafted something that didn't meet her intent well because the lawyer there is not a doctor the lawyer there is not required to determine a hundred percent for themselves that your mother has capacity or not what that lawyer does is they do their best to establish relationship with your mom and your mom has wishes if you think that somehow another somebody is exercised undue influence over your mother or she does lack capacity that's your burden to prove that in the form of a trust contest but you're not going to be able to sue a lawyer for legal malpractice for doing your mother's estate planning which is their duty they have a duty to do what they think your mother wants to be done with her estate plan and again they're not medical doctors they're not psychiatrists they're not neurologists they're doing the best I can and they owe fiduciary obligations here to your mom when they're doing her estate planning for her okay so that's not gonna be such a good case so what is a good case for attorney malpractice in this area well the best one we've ever had come in our office and it settled for a policy limits after one deposition was where the original trust required both settlers both trust creators the mom and the dad to sign any subsequent amendments and for some reason a lawyer drafted an amendment that gave a lot of money to our client and only had one of the trust creators I think it was the mom sign the trust amendment it's not a valid amendment at that point and at that point and so we have an intended beneficiary our client who's supposed to get a lot of money based on this amendment but because the aunt amendment lacks the required formalities of two signatures then legal malpractice has taken place our clients damaged and so that you have malpractice coverage to make up for that damage so in that case the lack of one signature was enough to make the amendment invalid correct which there's no way to get around that I mean it was clearly you needed two signatures you had one under the trust document that's not an amendment we're never gonna win that like you could go and try to challenge that and uphold the amendment the amendment is gonna fall because there's only one signature correct so then you sue the attorney cuz what could the attorney have done to correct that mistake you can't because we have deceived people that have already passed away so you can't get another signature no no but I mean when they drafted the amendment oh they could have read the amendment requirements in the original trust which says that there's two signatures required for all amendments and they could have had both the husband and the wife signed the amendment and then ironically in the case that I was just speaking about the husband and the wife were actually in that lawyer's office when she drafted up the amendment and had just the wife sign it so that was just curious to me why why not just go ahead even if you only were required to get one signature if there's people in the room and they're married get their signature right well and that's the interesting point of that case is that all you had to do all the attorney had to do when they drafts the amendment is have one more signature of the husband that's right so then the question becomes is that something that a reasonable attorney would have done in doing an amendment yes yeah it's a clear yes no-brainer we would have read the trust you would have seen oh it takes two signatures they're both here have them both signed so I guess what you're getting at is that that's a very clear-cut case of liability when somebody made a mistake it was a mistake that shouldn't have been made very easy to fix no reasonable attorney would have done that boom they're liable that's right but how many cases fall along those lines those are rare cases where it's so dead to rights but even in that case the insurance company hired lawyers and made us take depositions and it was kind of sad because we had to put the the lawyer in the hot seat and we had to have her read the provision in the original trust and ask her if she understood it well of course she understood it and do you see where it says two signatures yes and then you put her amendment in front of her that she drafted and asked her is this the amendment you drafted yes how many signature lines do you I mean it's it's just it was sad actually I didn't enjoy that deposition right after that deposition the we made a policy limits demand and there's some bad faith concepts that we don't need to get lost in today ultimately the insurance company thought we better settle this for policy limits or within policy limits so that we don't get a bad faith cause of action against this in the future right okay so I mean not all the cases are gonna be that clear-cut and so on my example where I said well the attorney drafted something that I don't think they should have drafted that in and of itself isn't gonna mean a whole lot well let me give you an example and you may have this set up for another segment but I'm gonna ruin it for you so we'll see how well you tap-dance but let's say that my mom comes into a lawyer and hires the lawyer to draft a will that leaves everything to me and cuts out my brother and sister which she should be doing I mean I think that's the right result so let's say that the lawyer diligently drafts up the will and has everything ready for my mom to sign and he places it on the corner of his desk and he sees it every day when he comes in from wherever he comes to come to work every day and he sees that we'll sitting there he fails to call my mom chooses not to call her for whatever reason for like three months so for three months he's come to his office every day and saw that we'll sitting there ready to be signed hasn't called my mom my mom passes away am I gonna be successful or am i more than likely gonna be successful and illegal my practice case against that lawyer probably not I mean Wow why not I mean shouldn't he have had a duty to call my mom he may in fact have a duty to call your mom but the problem is is that there's a later case that came after Lucas V ham and I should have brought that case with me today and I didn't so I'm not great at tap-dancing at the moment I guess but and I can't remember the name of the case off top of my head either but I'll tell you this there's case law out there that says if an attorney draft something up and they just don't get back to the client the client doesn't sign it the court is not going to hold that attorney liable and the reason being is that it's too speculative we don't know if that document had been put in front of your mother we don't know with any certainty if she actually would have signed it because there are plenty of times when clients say I want you to give everything to Stuart and just inherit my other two kids but then when it comes time to actually sign it there could be a change of heart a change of mind they may decide they don't want to do it or they want to change something else you just don't know without a signature it's too speculative that's right and I would even say one one thing if I was gonna disinherit to my children and give everything to one of my children it wouldn't be something that would just slip my mind right if I had a lawyer draft something up that I'm gonna get back to the lawyer I'd say hey where is that is that drafted up is that ready for me to sign yeah the attorney I mean the client has some duty I think or some obligation to call the attorney and say hey where's that thing I want sign it now I will say that that's a very mminton tend to everything so there certainly could be cases where an attorney does something intentional intentionally trying to keep the client from from putting their intent into action by signing that would be a whole different case that is that's a whole different case but and I will tell you this lawyer that did what I just suggested it's bad practice oh yeah if you saw will sitting there on the corner of your desk you should be emailing or texting or sending smoke signals or whatever you have to to your client to determine I've got this drafted are you signing it or not that's true although I've seen plenty of times where somebody comes in to get an amendment if the amendments drafted up and say a week's time and the client dies you know a couple days later right that happens unfortunately and you know attorneys are not guarant ors of these intents throw the document has to be put in front of the client the client has to sign it before the attorney is going to be liable in most cases unless there's an intentional aspect to it where the attorney intentionally is trying to thwart the clients right and then once the client signs it then the question is was it drafted properly and that's when you get into potential malpractice by the beneficiaries being able to sue the attorneys that's right Angelis that's right so that's a little background and basic information about malpractice on trust moles so you want to be an intended beneficiary if you're an intended beneficiary and the drafted attorney messes up you likely have a valid cause of action whether you gonna win that or not is another question but you have a valid cause of action against a lawyer and it's something you should at least look into right so you these statute of limitations for suing attorneys is very short so one year it's funny because lawyers drafted those statutes yeah and they make it but one of the shorter statute so injury it's two years that's right suing an attorney is one that's right guess who drafted that statute attorneys yes you can you can take two years to sue doctors but a year to sue attorneys that's right yeah Wow so it goes all right let's move on to our next segment and we're gonna move on to our practice pointers and Stuart if you could kind of lead us out on some ideas you've had as practice pointers in the area of attorney malpractice yes so we have a case right now where we have a client that was an intended beneficiary much like we just discussed where her father had taken her in and out of his trust on multiple occasions but ultimately while he still had capacity and no one to arguing that he sent a letter to his then a long-standing estate planning attorney and said you were to immediately to reinstate my dog and put her back in the trust like she was before same percentages and everything and he signs his name and he sends it off to the lawyer and the lawyer never responds to him lawyer doesn't do anything lawyer doesn't get in contact with him and then over the next several years the individuals capacity it starts to decline at some point in 2014 again the lawyer the drafting attorney here had a long time it was a longtime client that the decedent here who ultimately passed away the decedent's one of the daughters comes into the drafting attorney and says Oh dad has lost all of his capacity so what am I supposed to do so the lawyer without calling his client to talk to his client just goes ahead and drafts up some capacity letters gives them to the daughter it says you need to go and take these two - your dad's doctors and get him to sign off on which is not particularly difficult to do right and when you bring those back then you'll engage with me as your attorney for the trust administration and there was some facts that came out about a secret meeting it was it was called a secret meeting several times by the daughter the estate planning attorney and and another person who was named as a coach rusty and it was kind of the idea to keep this secret from the decedent who hadn't passed away yet and the lawyers got several problems here that I've already identified the first problem he has is he didn't follow his clients direction to put his daughter back into the trust so that was done in a letter yes from several years prior I mean that's pretty solid evidence that somebody wanted something that's right and so there's an argument that you and I've come up with and we think it's a right irrational or even and that is that the letter itself is an amendment it doesn't need anything more than that because that shows the intent of what this individual wanted and it's a writing and it's signed and most trusts say you need to have something signed and then you know in writing and signed by the set law and deliver to the trustee and he was trustee was trustees yeah yeah it's funny how those writings actually can be amendments in and of themselves right but as a lawyer at a minimum if we got that letter and we didn't want to make the amendment we would have a duty to our long-term client to let them know hey we can't do this for XY and Z or yes we're gonna do this and I'll have it sitting in my office come in and sign it now you go back to that other case you just talked about where if he had drafted up the amendment and let it sit there in the office well maybe now without the letter that wouldn't be a valid amendment but because we have the letter we think we have a valid amendment so that's the first issue that I see with the lawyer the second issue is the duty of loyalty that the lawyer has to their client and here the lawyer represents decedent who apparently according to one of his daughters is lacking in some capacity or having a downgrade to his mental functioning but the lawyer doesn't take any time to even contact his client his long-term long-standing client to even try to have a phone conversation with him or to go visit him or have the client come in to the office and why does that bother us well the issue comes down to you cannot you cannot take actions that are adverse to your clients interests and so you think about that I mean do you want to control your own finances do you want to make your own financial decision now right now in your life yes or do you want somebody else doing that for you me so if I'm your lawyer I have no right to take that away from you without first talking to you do you want that now you might say to me yeah I want to do somebody else to manage my finances that's your choice you have the right to make that decision but you could also say to me no I don't want that I don't want somebody else controlling my finances now I might think you're crazy and I do in fact think you're crazy but that doesn't necessarily mean that you can't control your own finances and so if you tell me no I I want to control my own finances I think is your lawyer I have to stop right there right I have to say well there's nothing else I can do right because I have a duty to you that doesn't mean though that the daughter couldn't go get a lawyer and that lawyer could then fine attempt to find some incapacity the interesting thing about this case the facts we just learned about in a recent deposition is that the lawyer here the drafting lawyer here when he had this so-called secret meeting one of the co trustees went back and told the decedent about it and the decedent was furious so that leads me to believe he was not lacking totally in city right he was furious about two things number one he learned that his daughter hadn't been placed in the trust like he had directed in 2012 according to what his directions works as a lawyer and he learned that the lawyer was trying to take away his right to make financial decisions and so forth right and that's a lawyer's lawyer supposed to be a lifeboat for you a life preserver to keep you afloat at times when you're going through a hard time are supposed to be your advocate not to be helping drown you yeah also so though so that he was so upset about that he directed this other co trustee to go find me another lawyer so that I can get number one my daughter reinstated like I've always wanted for the last two years and also I don't want to be conserved I don't want to have my rights taken away from me as the trustee of my trust well it's funny because just the fact that he wanted another lawyer probably shows just how capacitated he was because that's exactly what any reasonable person would do is that if my lawyers trying to work against me and take away my rights to manage my own finances I'm gonna think to myself I need to find another lawyer right because this person's gone off the rails that's right the other problem with the capacity we see this a lot where they people come in with these capacity letters from the doctor that doesn't mean that a doctor has done a mental exam or a mini-mental or any of the things that you would expect to get a proper incapacity diagnosis it's usually just a treating physician they're very busy they don't mean any ill will by it but the daughter comes in and says Oh dad needs help with his uh you know paying his bills can you sign this letter and the doctor obliges because he just being nice he's not trying to like everybody's will meeting there yeah and so they sign the letter and out it goes and then you have these letters saying oh there's two letters from dad's doctors saying he lacks capacity that doesn't mean he actually lacks capacity he may or may not write but those letters are quite easy to get and again I'm not saying anything bad about doctors I think doctors are doing the best they can and they're trying to help their patients but but that doesn't from a legal perspective that doesn't mean that the man went through an actual neurologic exam exam to determine whether they had capacity or not which I was just gonna say is completely different set of facts and we have seen from time to time where somebody has gone to a neurologist right and the neurologist takes you know it's an hour hour and a half interview with this person and they go through everything and they give a big long report about what this person's capacity is and and there's varying degrees in capacity for different types of mental functioning and they go through each one of those and they describe it in detail it's not a simple two line letter saying this person no longer has capacity yeah this letter from the doctors are usually literally one sentence or two said well they're drafted by lawyers in most cases yeah and the and the lawyer and the doctor saw again the I agree with you the doctors not trying to hurt anybody the doctor sees people that look like they want to help this person and so they're signing off on it so I guess if to really get to the heart of the matter as a practice point I mean first of all as a state planning attorney you do not have the right to be pronounced dick with your client right that's gonna have to find out what does the client want and whatever the client wants that's what you need to do that's right and number two the other thing that troubles me about this particular case is it sounds as though this lawyer was more interested in keeping a client on retainer because if the original client the dad lost capacity then the daughter probably need to go out and get a different attorney that's right which means the attorney who who had drafted the plan would lose out on write the dollar bills billing that client that's right I would say that this case I probably wouldn't have taken it on the way we did if one fact had been and that if the lawyer had gone and visited with his client first and saw that he was completely I mean he was just drooling there was no mental functioning okay maybe he's the long-standing estate planning attorney who better to stand in and do these things but under the law that's a conflict of interest and it has to be analyzed to make sure that you're not violating your duties to your long-standing client so that you can keep another retainer from a trustee keeping the keeping the case going forward and I'm not I don't mean to make this sound so facetious there's nothing wrong with good lawyers working on cases but this one there wasn't even a phone call the the lawyer hadn't followed up with his client in more than a year or two something along those lines and just simply had no idea if what the daughter was reporting to him was true or not all he knew was that this daughter was going to be now taking over the trust moving forward comes back to who's the client so if the dad's is a client you have to do right by dad and so did this attorney do right by dad right and that's what it ultimately comes down to and it sounds like you didn't right and that's unfortunate because it's not that hard it's not that hard to do the right thing pick up the phone drive out to the clients house whatever it is that you have to do and find out for yourself that's right so that's that's an interesting case and it's unfortunate - mm-hmm all right well let's move on to our asked and answered segment so we actually have asked been asked many many questions over the years that have to do with attorney malpractice but we have some recently that the lovely miss Kayla will read out for us so our first question today is can a lawyer draft an estate plan without knowing whether my mom dad or loved one has mental capacity to make good decisions so we touched on this a little bit earlier that's something that you had mentioned - and the interesting thing about the issue that you trying to get out of the scene in Kayla you just have to on the third line there you go what she's gonna do a back flip back out there she goes so the interesting issue about drafting attorneys so in a state planning attorney when they're asked by anybody to do a trust or will they have to make a reasonable inquiry into whether or not the person has capacity and is operating without undue influence but when we say reasonable inquiry it's not an exhaustive inquiry it's not a medical inquiry lawyers are not doctors they don't really know the ins and outs most of us don't really know the ins and outs of a medical diagnosis for lack of capacity that's something that is good that's why we have psychiatrists and psychologists and neural niro psychologists right neurologists is all you know they study the brain not us so would you so if somebody comes in the attorney certainly has a duty to be reasonably assured that the person has capacity but they don't have to guarantee it and they don't have to back it up and so would you as an estate planning attorney and we used to do with state planning years ago before we got so heavy into our litigation practice but would you send a client out to have a neuropsych evaluation if they came into your office wanted to do an estate plan not under generally the answer no I would not do that but if I myself based on my experience in life thought there was questions about this person and then there was another red flag with family members bringing this person in the person who looks confused to me I would either decline to do the estate plan or if I did feel that maybe this could be looked in to further I might suggest hey if you'll go get a neurologic exam on this person and get a nice detailed report I'd be happy to do their estate plan so really it comes back to the red flags then yeah so if somebody comes in they just want to leave off they want to create a trust that leaves everything to their kids equally and that's what's gonna happen under the intestate rules anyway right and you're not quite sure if they can have capacity or not would you do that as state plan probably again if I felt the person didn't have any capacity whatsoever then I would I would probably suggest we at least get one of those letters from a doctor that our attorney drafted the funny thing about this is I remember one time we went to a trust in will sign we're doing a state planning years ago and I think if you remember the the the lady was in in really bad shape she was in a skilled nursing facility and yeah having problems breathing and I wasn't sure I wanted this thing signed and we cut the signing off when her son grabbed her hand the son grabbed her hand started signing the documents for her yeah at that point it's like okay stop timeout this isn't gonna work yeah we took the documents back in shredded and it's like she clearly she looked awake at the beginning but halfway through signing it was like oh right I mean I think that definitely is a problem now that in that case he was her only child the trust was gonna leave everything to him anyway I mean it's kind of like no harm no foul when you're not changing anything I think the problem comes into play when either one siblings bringing the parent in and lo and behold the parents saying I want to leave everything to the person who just drove me into the office right or worse she had a caregiver and I've had that happen to me before too where a caregiver in particular contacted me and with a client I had already done an estate plan and then the client started to go downhill and then I got a call from the caregiver saying oh he wants to leave me his house right and it's like I'm not no I'm not going to touch it I'm not gonna do that change I don't think it's appropriate I told her that in any event you're a prohibited transferee under the statute but I would never do that amendment because it just sounds very self-serving and I can't be assured of that but it's shocking I think to a lot of people that attorneys don't have to get a medical evaluation that's right and that answers the question here the one thing I would say is is that well why don't we move on to our next question I think we've we've we tackled this one enough okay so the next question is does a lawyer have to take measures to ensure that an estate plan is not influenced by coercion manipulation or a failing mind so I'll just I'll tackle this want to say it's very similar to the last one and that is this is more the undue influence or somebody else exercising some type of excessive persuasion over somebody to change their estate plan this is again the red flags analysis you're the lawyer you don't have a duty to like go and visit the house and inspect how many people have been coming and going and you're not a private investigator trying to figure out why you shouldn't do this estate plan but if you're seeing one person bring somebody that's fairly frail into your office and this person is answering all the questions and and saying oh mom and dad that's not what you wanted to remember at home you said this this and this that's where you want to take a timeout say listen I need you well first of all that person shouldn't be in the room in any event but if they are you need to get them out of the room and you need to talk to the client and see what's going on but if you if I were to see something like that I probably would decline to do the estate plan and this is what I was just about to say and the last question and that is it's amazing to me how many lawyers out there will take $1,500 to do an amendment that will transfer millions and millions of dollars away from too really good kids and give it all to one really bad kid well I was gonna I was just gonna say they go numb number one we see this most often with attorneys who don't practice an estate planning so it tends to be the attorneys who do completely unrelated things who make these amendments when they shouldn't when there's clear red flags and number two it always seems to be for a very low price it seems like the worst the amendment is the cheaper they charge for it which is kind of backwards you would think because if you're gonna transfer millions of dollars in a situation where there's tons of red flags that this person is being unduly influenced why would you only charge a hundred to a thousand dollars for that we charge fifty thousand dollars you're doing something wrong we might as well charge for it we have a case going on right now where there was ten million dollars roughly ten million dollars transferred in a twenty minute amendment it took the lawyers 20 minutes to draft the amendment and you know much the lawyer charts for it five hundred dollars mean Wow and ten million dollars was transferred and they ignored all the red flags I'm sure baby and we'll see plenty of cases where there's tons of red flags and you'll see the longtime estate planning attorney will turn it down and say no I'm not gonna do that amendment there's too many red flags by the way we those are the perfect cases that we take when we find out that there's a long term attorney that declines to make an amendment and then somebody goes and shops around for in one of these lower end attorneys to do a $500 amendment we'd love to get the file from the previous attorney because that attorney is a good solid citizen and chances are they've documented their file saying I don't believe this person had capacity or I believe there was an exercise of undue influence taking place over my client well eventually it seems like eventually you can find somebody to draft one of these amendments yes it's just that they're out there somewhere but it tends to be people who don't know trusts and wills that well because they don't understand the red flags and so they'll just do you know what they're told right and it's unfortunate so you have any other questions we do two more questions so the next question is can I sue an attorney for drafting a bad estate plan and if so what proof do I need well we talked a little bit about this in the first egman - but the best state planning question the you can sue an attorney for drafting in a state plan improperly if they made a mistake in the drafting that caused you to lose your inheritance but then the question becomes how good of a case is it so when you ask what kind of proof do you need it comes down to well what kind of what kind of mess up was it right where was the harm or the error by the attorney and so the error was one that you described where it took two signatures and they only got one what kind of proof did you need in that case the documents that was about it yeah I mean the proof was very little because it was just so clear cut but normally you're gonna need a little bit more proof than that yes would you agree with that I agree which means you probably are gonna need the testimony of friends or witnesses or somebody who knew what this intent was because let's say that somebody was mistakenly left out of a trust so they were disinherited but it wasn't the intent of the testator to disinherit them so I have four kids and I get a trust done and I said I want to leave it equally to my kids and the attorney writes down three of the kids not realizing that they left out a fourth and they specifically gave everything to those three kids what what kind of a case would that be a thing from practice a few years ago would be a real problem and there would be a lot of liability that that malpractice attorney would be facing but now the California Supreme Court I don't remember the name of the case they have opined and said that we're gonna allow extrinsic evidence which is simply outside evidence to come in to cure a mistake and before we didn't and the mistake had to be apparent on the face of the document intent is usually not apparent on the face of the document because and I'll give you the example I thought you were gonna say is where a man has two children from a previous marriage from years back yeah he gets remarried years later to a very young lady and he's in his 60s and he has four kids with the very young lady yeah and he intends to give all of his assets to his four children that he's had with the most recent wife and he he has that through all these amendments yeah and the final amendment the lawyer somehow leaves out my four children with my current wife and just simply puts give this equally to all of my children well he's got six children and so the question is did he intend to give it to the six or the four that's not apparent from the face of the document cuz the document says all children so how do you resolve that well you bring up an interesting point so the first question is can you fix the trust and so can you figure out what his intent truly was and does the court have the right in the power to correct that mistake so you're saying that the court and I agree the court came out not that long ago and said you can use extrinsic evidence to fix mistakes right so if you get the you know testimony of the drafting attorney and whoever else would have information about this and they say it was supposed to go you know to my four kids or was supposed to go to the six kids then you can use that testimony to correct a mistake but if you correct the mistake let's say the court agrees with you and corrects that mistake does that take away the attorney malpractice not necessarily although it makes it a harder case to win it could right so like in my example where there was four kids but they only named three right let's say you go into court and the court says yes that was a mistake and I'm gonna correct it right under my power is my equitable powers to make correct mistakes right so now it's gonna go for ways to all four kids right is that attorney off the hook from up right more than likely yes because there's now not other than the cost it took maybe two the cost I mean you could arguably one of the three that was Gideon could say no no it was really three it should have been three but chances are that's not gonna win especially if a court reforms the trust so so it's probably going to let the attorney off the hook for malpractice so there's a difference between part of the problem with these malpractice cases is you have to see how the underlying lawsuit pans out correct because if that underlying lawsuit is fixed then maybe that malpractice goes away that's right that's right we have one more question here last question is what steps should I take if I want to challenge a trust or a will okay so this has to do with a typical trust contest or will contest and so what generally happens here Keith is that you're going along in life and you're a lawyer you're you're providing for your family and your sister lives at home with your mom who your dad's passed away and everything he owned he gave to your mom and so one day your mom passes away it's a very sad time for your family you and your sister get together you plan a funeral she may be a little controlling in that she may not answer all the questions you have you might start thinking something just doesn't feel right here but because it's a funeral you go to the funeral you get the speeches you get back to going to work a couple weeks pass and you think you know I'm gonna call my sister I'm gonna ask her you know where's mom's will or where's mom's trust and she doesn't want to give it to you and you know you have to go hire a lawyer because your lawyer doesn't practice in this area that lawyer finally secures a copy of the trust and and your mom made this trust in 2005 and it split her entire estate between you and your sister equally and lo and behold a month before she died she does an amendment for five hundred dollars to a drafting attorney right and everything goes to your sister so what are you to do but when what are your rights can you should you just give up and say well I've lost my inheritance or what can you do well you definitely should at least seek the advice of somebody who knows trusts and well litigation and you know that's all we do and you should find out if there's grounds to challenge that amendment you can't overturn an amendment just because and so I think a lot of people think well I'm a child and I should get something from my parent well in the United States and certainly in California children do not have an automatic right to inherit from their parents parents can disinherit you all day long and that's just the way it is but the question comes down to was it a proper amendment so did mom have capacity was she unduly influenced was she the victim of fraud you know what she lied to so you get some of these cases where you know maybe my sister went in and said we'll just leave everything to me and I'll make sure that you know Keith gets his share or something like that right which by the way my sister would never do that but but everybody you know we run into these problems continually I mean this is why we have the firm that we have is because people are always have these problems and it's very confusing because people don't know what to do after died and they don't know what their rights are and they don't know whether or not they can challenge this and then you get that piece of paper in the mail that says you have 120 days if you get a trustee notification and says you have 120 days to challenge the trust that's under California law under California law so that's you talking about - de side I mean think about that your parents just died you just found out you're disinherited and you've got four months to decide if you're gonna file a lawsuit or not and if you don't you'll never be able to file a lawsuit ever again there's a lot of pain going on heaviness at that time a lot of stress and you have a lot to think about so I mean I think the first step for sure is to get good advice from a competent attorney who knows what they're doing in this area find out what your potential rights are and if you if in the case of a total disinheritance it's a little bit of an easier decision because you can just go ahead and file the lawsuit I'm not gonna lose anything really other than the cost of paying the attorney unless I'm hiring the attorney on contingency I can at least file and see what's out there and then we can figure out what the evidence is and we are gonna have to do discovery get the medical records probably do depositions get some written discovery just what's what's out there and the one thing I always tell beneficiaries when they call in to us and they're in the situation you just described is right now you're in the dark you don't have any information that you need to evaluate this case you don't have the finances usually you don't have the medical records all of this was done behind your back naturally because it was a sneaky thing to do and so you're in the dark but you're not alone every beneficiary in your position is in the exact same position which is there in the dark they don't know anything so it's a two-step process step number one you got to get informed and then once you get the information step two is now we can make some decisions about how to proceed on your case unfortunately you can't get informed without filing a lawsuit because it's when you file a lawsuit that you get the subpoena power and you get deposition power and we get all these great powers to go out and force people to give us that information but right how do you get medical records prior to filing a lawsuit you don't you really don't a lot of times people say well can I go to the medical provider and get my mom's medical records usually no we say no and they go oh here I went and they gave me these medically how do you every now and again somebody will go and the medical provider will give them but probably 90% of the time they won't especially with all the new HIPAA laws and so that means that yet to file lawsuit and issue the subpoena so the steps really are to get some competent advice everybody has to make their own decision about whether they're going to sue or not but once you make that decision then and if you're the decision is to sue then you got to get to work you got to file your lawsuit as quickly as possible because you're under a deadline in most cases and then try to go out and find the evidence that you need as quickly as possible and by quickly of course in the law we're talking a matter of months right I mean to get properly informed it's probably gonna take you six to ten months of work that's right because that's how the law works but but that's fast in our area that are lightning fast right is that all the questions that we have Kayla fantastic well we want to thank you so much for joining us on the Sam fight wind podcast we'll be here next week when we go over another topic of trust and well interest Thank You Stuart you're welcome we'll see you next week all right take care.