Estate planning tends to be heavily focused on the care of loved ones. One difficulty you or someone you know may face is figuring out how to leave behind assets to care for someone who is mentally impaired or disabled to a degree that he or she cannot function independently. Some of the same considerations involved in leaving assets to a minor child are also relevant here.

Trusts

Any gifts that you make or assets you leave behind for an incapacitated person who cannot manage his or her affairs, would ideally be in the form of a trust. The Trustee of the trust can then manage those assets in a way that will be effective for the beneficiary. The Trustee can also make distributions for the benefit of the beneficiary in a way that will enhance the beneficiary's lifestyle. Frankly, the beneficiary may not even understand or be capable of comprehending the existence or nature of the trust.

Special Needs Trust

One concern that crops up for certain disabled beneficiaries is the potential loss of public benefits they may be receiving. If the beneficiary is receiving public benefits or government assistance, it's possible that your gift to them in the form of a trust or otherwise may jeopardize the beneficiary's eligibility for the public benefits and government assistance. In this scenario, it may be prudent to establish a "special needs trust" that limits how the trust assets are used so as not to cause the beneficiary to forfeit his public benefits.

Deciding the best way to leave assets to an incapacitated person can be difficult. It may depend on their level of disability, the value of the assets that you wish to give to them, or whether or not they are receiving government assistance. Having an estate planning lawyer explain the possible consequences and pros/cons of the different approaches could help you ensure that you are doing what is in the best interest of the beneficiary.

Although a lot of focus has been placed on "undue influence," some other grounds for challenging a Will include fraud, duress, menace, or mistake. The purpose of this post isn't to delve into particulars of each one but simply to make you aware of their existence. It's important to remember that under California Probate Code Section 6104, "[t]he execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence."

Mistakes in Wills vs. Trusts

Mistakes are treated differently depending on whether they are present in a Will or Trust document.

When there's a substantial mistake of fact or law, a trust may be rescinded. On the other hand, if a Will as a whole is executed with testamentary intent, it can't be overturned on the basis of mistake.

In case you're not sure what a "mistake" is in the estate planning context, here are some examples. A mistake could be one where you didn't realize the effect of what was written in the Will or Trust. Alternatively, a mistake could be more technical in the sense that you didn't know the proper steps required to properly sign your estate planning documents. Still, another form of mistake might simply be a typo that has a substantial unintended effect on the distribution of your assets.

That being said, an experienced litigator in the trust and estates field may leverage one or more of these methods of attacking a Will or Trust, depending on the facts presented.

In California, generally the contestant (the person challenging the Will) bears the burden of proving that there was undue influence. However, the proponent of the Will has the burden of proof where he or she is a prohibited transferee under California Probate Code Section 21380.

 A contestant, however, may shift the burden of proof if he or she can show the following:

1. The existence of a confidential relationship between the testator and the person alleged to have exerted undue influence;
2. That person's active participation in procuring the instrument; and
3. Undue profit.

Given the high threshold, the person who challenges a Will or other testamentary instrument may have a difficult time collecting the evidence to successfully win a contest. 

Unfortunately, a practical reality faced by many potential contestants is that the dollar amounts at issue may not justify the expense of hiring a lawyer to go to court over the matter.  That being said, an experienced lawyer who specializes in these types of cases, would be in the postition be to help you evaluate whether this is an avenue worth pursuing.   

Figuring out whether a client has been unduly influenced can be challenging for an estate planning lawyer.

As an initial matter, we must first be able to identify the problem. This can be difficult if another family member or 3rd party is threatening harm (physical or otherwise) if the client breaks his or her silence about being pressured.

Other times, it is the family member or friend that introduces the client to the estate planning lawyer, and the client feels pressured to allow the family member or friend to participate in the estate planning process. This is further compounded the dilemma that even if the lawyer is able to isolate the client, having a friend of family member sitting outside of the room, may be enough for the client to feel pressure. 

Warning Signs

Other telltale signs of undue influence can be assertions by the client of dishonest family members or allegations of theft. However, many times these thoughts are a result of seeds planted in the mind of the client from unscrupulous family members.

Another warning sign is if the client switches lawyers. Depending on how long he or she has been with the prior estate planning lawyer, there may be more or less of a reason to think there's been undue influence.

Dilemma

Even if the estate planning lawyer catches wind that the client is being unduly influenced, what is the practitioner to do?

On the one hand, the lawyer doesn't want to participate in helping further the undue influence. Therefore, the estate planning lawyer may decline to represent the client.

On the other, if the lawyer does nothing, is he or she essentially helping to perpetuate the undue influence? What if the client is forced to find someone else who is less perceptive of the existence of undue influence (or if the client and his "friend" have refined their story as a result of speaking with the estate planning lawyer to evade detection)?

Evidence

Even if the lawyer ultimately determines that there is no undue influence, there's always the challenge of documenting evidence to that effect. After the passage of time, the beneficiaries may look back at the estate planning documents with a different set of eyes and perceive instances of undue influence where none actually existed. 

All of these factors make estate planning challenging not only for clients with good intentions, but also for lawyers who sincerely want to do what is in the client's best interest.