In this episode of Absolute Trust Talk, managing attorney Kirsten Howe welcomes associate attorneys Jessica Colbert and Ariana Flynn to discuss common issues in trust and estate litigation. Drawing from her experience as a litigator, Ariana highlights three major themes that often arise in family disputes over estates: undue influence, lack of capacity, and complex family dynamics. These challenges can lead to costly and emotional battles over a loved one’s assets, making it crucial for individuals to understand the potential pitfalls. Tune in to hear valuable insights on how to navigate these difficult topics and prepare for the future. Plus, stay tuned for our next episode, where we’ll continue this crucial conversation!
Time-stamped Show Notes:
0:00 Introduction
1:30 Ariana starts us off by sharing the most common family litigation issues.
2:45 In this segment, we discuss the most common issue: Undue Influence—what is it and how does it happen?
5:58 Not all influence is considered undue influence. If you’re as curious as we were to discover where that line is, tune in here!
6:35 Another common issue we see is a lack of capacity. Press play here to find out how this can be a major issue in estate planning.
7:30 Anyone can file a lawsuit at any time. Keep an eye out for our next episode where we’ll explore the details of such a scenario.
Transcript:
Hello and welcome to Absolute Trust Talk. This is our recorded video podcast here at Absolute Trust Counsel. I’m Kirsten Howe, the managing attorney at Absolute Trust Counsel.
I’m here with Jessica Colbert, one of our associates who you are probably familiar with because Jessica has done a number of episodes with me. Today, for the first time, we have our other associate attorney on the show, Ariana Flynn.
Ariana is a UC Hastings –we’re still calling it that– graduate. She’s been an attorney for about four years now. She came to us last summer, but we’ve been hiding her in the back room. Just joking. Those of you who are watching on video and not just listening on audio, you can see that she’s not a scary-looking person. We have not been hiding her, we just haven’t had her on the show yet, but now this is her debut.
So we’re very excited to have her here. Ariana is going to share a little bit with us based on her experience as a trust and estate litigator. That’s part of what she did before she came to join us and come over to the light side of just planning and administration.
She’s going to share some of her experiences because it’s very helpful to us as planners, and I think it’s helpful to our clients to hear about what really happens in the courthouse when families are fighting over money–over a dead person’s money.
I’m going to turn this over to Jessica to get us started.
Thank you.
So, Ariana, you have been a trust and estates litigator. That is something that Kirsten and I have not done. Would you tell us a little bit about, in your experience as a litigator, what were the most common issues that you would see families fighting over?
Yeah, absolutely.
First, I just wanted to thank you both for allowing me to be not just at your firm, but also on the podcast. I have been listening to it for quite a while, so it’s really cool now to be here and to make an appearance on the podcast.
I also want to subtly say hi to my mother who is listening here.
That’s a great question. Jessica, Kirsten, as you mentioned, I was a trust and estate litigation for the past three and a half years. I would say, with our cases, there came probably three common themes, one being undue influence, the second theme being lack of capacity, and the third theme just being overall family dynamics and family conflicts. Those are just the themes we would see throughout the litigation cases.
You can break it up, and with undue influence, just the legal definition, what is it? The California Welfare and Institutions Codes defines undue influence as the excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and it results in inequity.
What that basically means in human, just normal lay people terms is, getting somebody to do something that they don’t want to do that results in an injustice or something that they never planned on doing.
So what are the facts, the situations where you would see undue influence occurring?
Yeah, that’s good to ask. There are a variety of factors, one being just the victim or the person themselves and how vulnerable they are, that being age or their physical condition, their mental cognition, mental capacity.
Typically, elderly clients or disabled clients are more vulnerable than a normal layperson. The authority that the influencer–and influencer is a term unrelated to social media, that’s social media—we’re talking about the bad guy, right, so bad guy influencer. The authority that they have. For example a person in a position of power, a caregiver somebody managing medications, a relative who’s taking care of the day-to-day, or even as far as a person in a position of financial power, financial advisors, lawyers, unfortunately.
It’s mostly friends, family members, social contacts, but it could be a professional relationship.
Realtors, somebody’s in that position, and somebody who they trust as well.
Also, some of the actions. If the person is isolated, doesn’t have any friends, a person controls their finances, some of those things.
If the actions are really not in the best interests of the victim, we would know. It’s just kind of, when you know, you know. When you’re giving away all this money to a caregiver and a caregiver’s family.
Yeah, when you have your own family and you’re choosing instead to leave money to your caregiver’s family.
A lot of older adults—it’s not uncommon—do become sort of dependent on another person, whether it’s that person does their grocery shopping for them or, and oftentimes it’s, I’m just going to say, the oldest daughter. We see that a lot. We’re not necessarily accusing all those people of undue influence. It’s just that those are the facts that tend to point to the possibility of undue influence.
Right. Absolutely.
You just hit on a really good point, that everybody’s going to be influenced in some way. My fiancée will influence me to make certain decisions. But when that decision becomes undue and unnatural, it crosses over between normal influence compared to undue influence, where that person normally would not have made that decision, but for that influence.
I think that’s a good point. It’s not a rational, logical thing that something unusual happens.
You mentioned, that aside from just undue influence, you also see cases revolving around lack of capacity. The allegation is made, there’s a document, I don’t think this is a valid document because the person lacked capacity at the time that they executed it. I’m putting words in your mouth, so I’m asking you, am I right?
Yes, more or less, absolutely. That’s exactly right. Again, they’re challenging the person who created the trust or the will. They’re challenging their capacity at the time.
Grandma wasn’t in her right state of mind. She had dementia. She didn’t know what she was doing. More or less, yes, that’s a claim of lack of capacity.
The third one you mentioned was just kind of general family dynamic chaos, discord, what have you. We can talk about that a little more in a bit.
I am going to say for our listeners that what we want to do is, there’s a lot of content here and we don’t want to take too much time on this. We’re going to break this whole thing into two episodes and what we’re going to do in our next episode, and we hope you listen to it, is talk about the things that we can do for our clients, the things our clients can do to either preempt some kind of family litigation after they pass or at least prepare for family litigation if there’s really no way to preempt it.
Just going to remind people that this is the United States of America and anybody can file a lawsuit at any time over anything. We as planners can do what we can do and we can’t guarantee anything.
Anyway, we’re going to talk about all of that in our next episode.
Ariana, thank you so much. And Jessica, of course, as always, thank you.
Resources Related to This Episode:
- Absolute Trust Talk Episode 085: Estate Planning Changes Late in Life: Is it Real or is it Elder Abuse? https://absolutetrustcounsel.com/085-estate-planning-changes-late-in-life-is-it-real-or-is-it-elder-abuse/
- Absolute Trust Talk Episode 009: See Something, Say Something – Elder Abuse https://absolutetrustcounsel.com/see-something-say-something-elder-abuse/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your own unique needs to effortlessly build a secure future now. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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