Can You Challenge A Trust Based on Undue Influence?

What happens if you believe someone (say a sibling) used undue influence on an aging parent to get them to amend their trust? Let’s say the trust originally split everything evenly between you and your sibling, but now your parent is experiencing dementia and your sibling has hired an attorney and coerced your parent to change the trust so that everything now goes only to them.

You can certainly challenge the new estate plan. The question is whether it is easier to do it now or after your parent’s death. To do it now, you would probably need to seek a conservatorship over your parent. This would likely be very expensive, but it would help you preserve the evidence of your parent’s weakened cognitive ability and your sibling’s influence over them. The other approach is to wait until after your parent passes away and then challenge the trust through your parent’s estate by asking to be appointed as their personal representative. While the trust is not a probate asset, as personal representative you would have standing to question the recent change. You may also have standing as a beneficiary of the original trust. This also is likely to be an expensive and could include litigation. However, one potential advantage of pursuing the case after your parent’s death is that it would be easier to find a lawyer who would take the case on a contingency basis, assuming there is enough at stake to make it worth the lawyer’s effort.

Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

If you are in a similar situation, or know someone who is, Robert L. Michaels of Smith Alling in Tacoma can help. Bob is a shareholder at Smith Alling, P.S. and focuses his practice on elder law, estate planning, business and real estate matters. He has practiced law in the State of Washington since 1984 and has earned a solid reputation in the community for ethical and professional legal services. Bob’s friendly and engaging personality assists clients in working through complex and difficult matters. Contact Bob today for a free consultation.

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