Dear Len & Rosie,
My elderly mother recently passed. I am trustee and only beneficiary of her trust. I have a sister, who I have not seen or heard from in 40 years when she said she hated all of us and never wanted anything to do with us again. She even gave up her five-year-old son for strangers to adopt and would not let my parents adopt him. In the past few years she has visited my mother a few times a year. Now she has retained a lawyer to challenge the trust. Her court petition states that my mother was insane and that I committed elder abuse by forcing her into making this trust, but my mother left her out of the trust because of what she did in regards to their only grandchild and how she treated her and my father.
Your sister is trying to throw out the trust so your mother’s estate will pass equally between the two of you. To succeed, she has to invalidate not only the trust, but also whatever prior wills your mother may have signed disinheriting your sister and leaving everything to you.
Does your sister have a case? The attorney representing her probably thinks so. Most lawyers take on will and trust contests on contingency where the lawyer won’t get paid unless there’s a favorable judgment or settlement. But there are lawyers out there who use will and trusts contests as a means of legalized extortion. Even though your sister may not have a case with much merit — she was estranged for decades after all — it may cost you a lot of money to defend your mother’s estate plan. The lawyer could be hoping that he or she can convince you to pay off your sister with $20,000 or $50,000, just to make her go away.
Whether or not your mother’s trust is valid depends on the circumstances surrounding the creation of the trust. Here’s the best-case scenario: Your mother, years ago when she was living independently, went to see the lawyer all by herself and you had nothing at all to do with the creation of the trust, and you didn’t even know about it until it was a done deal.
On the other hand, your sister would have a much better claim if your mother created the trust only after she was became dependent on you for help in writing her checks and conducting her business. Then you picked the lawyer, booked the appointment, drove your mother there and explained to the lawyer how bad your sister was. Your mother’s trust will be even more difficult to defend if she signed it after she had been diagnosed with dementia or moved into an assisted-living facility.
The lesson here is that it’s never too early to disinherit your children. What we mean by saying this is that if you are going to create an estate plan someone may feel as being unfair, it’s best to do it now, while you live independently, and without any assistance from the people who will benefit from you disinheriting someone else. It’s also best to hire an attorney to prepare your estate plan, because your attorney can then be a neutral, unbiased witness to testify that you really knew what you were doing.
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, at 996-4505 or LenTillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, Spreaker.com and LenTillem.com.