The most difficult undue influence cases in California occurs when you want to take action while your parent is still alive. You may believe that your parent is being victimized by a wrongdoer through the use of undue influence, but taking action is complicated.
We refer to these cases as the difficult, can’t miss undue influence cases. They are difficult because there is no easy way for a child to step in and take control of a parent’s finances or personal lifestyle. This is especially true where a bad actor has influenced your parent to change their estate planning documents.
For example, a Trust is supposed to allow the successor Trustee to step in and manage the Trust assets once the Settlor loses capacity. But a bad actor will often have your parent amend the Trust to change the successor Trustee or revoke the Trust altogether. Once that occurs, the protections built into the Trust can no longer be easily exercised.
Filing for Conservatorship
The only option you have to protect your parent during lifetime is to file for conservatorship over your parent. But a conservatorship action requires you to file a petition in court alleging that your parent either lacks capacity or is being manipulated through undue influence. As you can imagine, most parents don’t like being told they lack capacity. And the bad actor can use your petition against you by telling your parent that you are attacking them or trying to take their money before they die. Those statements are likely false, but they can still do harm. The parent can disinherit you from their Trust and Will as retribution for your conservatorship filing.
This is where the “can’t miss” part comes into play. If you are going to file a conservatorship action against your parent, you must win that lawsuit. If you file and you lose, then you probably will be disinherited as well, and then you must fight the disinheritance after your parent dies.
In other words, these cases are difficult because your only viable legal action during a parent’s lifetime is filing for conservatorship. The cases are “can’t miss” because if you file and lose, you will be disinherited—you must win the conservatorship to prevent disinheritance.
Waiting to File a Trust or Will Contest Lawsuit
There is another way however. Instead of taking action while a parent is alive, you can wait until the parent passes away and then fight for your rightful inheritance. That may sound like a bad action, and it certainly won’t protect your parent during his lifetime, but it may be the only legally viable option you have.
There are no easy answers in these difficult cases. You either have to take action now (and suffer the consequences of those actions) or file a Trust or Will contest lawsuit later after your parent passes. This is where the advice of a lawyer who is experienced in this area is helpful to guide you through your options.
