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Elderlaw: 03/15/2019

Elderlaw Advocates March 15, 2019

Dear Len & Rosie,

My deceased mother was in the care of my niece who was also trustee of my mother’s trust. My mother modified the trust to give my niece her home, which is worth at least one fifth of the estate. At the time that this was signed, my mother was in hospice and was being given morphine. I think there was undue influence and manipulation. The trust has a no-contest clause and a lawyer my brother consulted with said that the risk is too great for the return. My share is one-fifth of the estate, what is your opinion?

Dear Donald,

You may have a valid undue influence claim, or even a claim that the trust amendment is invalid due to a lack of capacity on the part of your mother. An undue influence claim rests on a three-legged stool consisting of a confidential relationship (your mother trusted and relied on her niece), active procurement (your niece got your mother to amend the trust, hired the lawyer, etc.) and unjust enrichment (she wound up with more than what she would have otherwise). If all three elements of undue influence are met, the burden of proof will shift to your niece to show that she was not really up to no good. You may also have a lack of capacity claim if you can show that your mother was too medicated to understand what she was doing.

The problem, as you have already learned, is the trust’s no-contest clause. No-contest clauses are essentially a “take it or leave it” proposition. If you challenge the validity of your mother’s trust in an attempt to get more than what the trust says, you’re disinherited, but only if you lose. If you win, then the amendment is invalid and the trust goes back to what it said before your mother changed it.

No-contest clauses were so powerful that there was an ongoing debate as to whether or not to allow them. The debate ended last year. As of January 1, 2018, the Legislature updated California’s no-contest clause law, Probate Code sections 21310-21315. Now, filing a contest won’t disinherit you if the judge determines that you had probable cause. In your case, it means it’s not a contest if, at the time you file your petition, the facts, as known to you, would lead a reasonable person to believe there’s a reasonable likelihood that you’ll win. The effect of the new law is that it leaves it up to the judge to decide whether or not to disinherit you if you contest the trust amendment. There are no jury trials in the Probate Court.

Another point in your favor is that no-contest clauses are strictly construed by the courts. Unless the no-contest clause says that it applies to trust amendments, or the amendment included a no-contest clause of its own, you should be OK.

The other problem your case may have depends on who did the legal work. If an estate planning attorney met with your mother and prepared the amendment, then he or she will be a neutral witness who will be available to testify as to your mother’s mental capacity and her desires. Your mother wouldn’t be the first dying woman to leave something to a niece or nephew who helped her live out her last days at home.

What you should do is get a second opinion from a trusts and estates attorney who actually has experience litigating cases.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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