Hello, I want to discuss with you briefly today, the most common type of litigation that we see here in the office. Those are litigations that would seek to invalidate a trust instrument. We generally bring those on three grounds.
The first is lack of testamentary capacity. What does it mean to lack the testamentary capacity in California, to create a trust? Well, it means that the person doesn’t understand the rights, the duties, and responsibilities that will be created by their decision. They don’t understand the probable consequences of their decision, both positive and negative, not only for themselves but for those that will be affected by their decision. And three, they don’t understand the risks of their decision, the benefits of their decision, or the alternatives to their decision. Essentially what it means is they don’t understand the pros and the cons of creating and executing their trust.
The second ground that we usually allege to invalidate trusts is undue influence. What does it mean to be unduly influenced here in California? Well, undue influence is more than just influence, it doesn’t mean asking someone to put you into their trust. What it means is using threats and manipulation and coercion, to take away someone’s free will, and because of these threats, this manipulation, and coercion they make decisions they would not have made had they not been the subject of the undue influence.
The third is financial elder abuse. Generally, in most cases in which we seek to invalidate a trust, the person that created the trust was an elder. And an elder in California is someone that is the age of 65 years or older, and a resident of the state. So again, if you want to be able to invalidate trust insurance here in California, generally the grounds to do so are proving that the person lacked the testamentary capacity to create the trust in the first place. That the trust was the product of undue influence. And if the person was an elder, that the trust was also the product of financial elder abuse.