Lafayette Estate Litigation Blog

Holographic wills are only valid in California in 4 situations

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in general estate litigation on Friday, December 7, 2018.

While different ideas may come to mind when you hear the term "holographic will," it simply refers to a will that has been handwritten as opposed to being typed out. They are most commonly drafted in situations in which an individual knows that they're nearing death, and they're not surrounded by anyone else to help type or witness the document being written. Such wills are valid in California under select circumstances.

In order to be considered valid in California, section 6111 of the California probate code requires that a holographic will to meet four different criteria.

Proving undue influence occurred isn't easy

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in undue influence on Friday, November 23, 2018.

When you sign your will, it's best to do so in the presence of witnesses. Some jurisdictions may even require this. If yours does, then there may be certain criteria for choosing your witnesses. All of these requirements exist to ensure that the testator, or person drafting the will, has testamentary capacity, or knows what they're signing and that no one has undue influence over them.

California's Probate Code 21380(a) describes how anyone maintaining a relationship with the testator can be deemed to have exerted undue influence over them. If someone is engaged in a fiduciary relationship with the transferor at the time of the signing, whether a shareholder, business partner or employee, they must be closely scrutinized to see if they exerted some type of undue influence over the testator.

Executor mistakes could result in probate litigation

On behalf of Pedder, Hesseltine, Walker & Toth, LLP on Tuesday, November 20, 2018.

Estates are often at risk of facing conflict from surviving family members or other parties associated with the estate. Unfortunately, some probate cases may be more predisposed to fights, simply because of the family dynamic. Of course, problems could also come about if you make mistakes while acting as executor of the estate.

Because the probate process is long and complex, a considerable amount of room exists for errors. Even if you think you are taking action to help the estate, your good intentions could cause more harm than good. If a mistake is serious enough, you may wind up having to deal with probate litigation.

What makes an elderly person more open to financial abuse?

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in financial abuse on Friday, November 9, 2018.

Those who commit financial abuse pick their targets carefully. They look for certain signs that show them that it will be easier to get what they want.

For family members of elderly relatives who receive assistance from caregivers, it is important to look for these same signs that may indicate that the person is being abused financially. This abuse could come from a caregiver or another family member. Some warning signs include the following:

The person is physically not in optimal health. This makes them vulnerable to exploitation from caregivers who threaten to withhold services unless they get what they're seeking.
The person cannot take care of their own home. Some experts warn that repair workers may take advantage of elderly people by claiming that repairs need to be done when they do not, or by claiming they made repairs that they never made.
The person has mental and emotional challenges. The elderly person may suffer from dementia or be confused and forgetful due to another degenerative brain disease. People who are close to them may use this for their own gain.
The person does not know much about their own finances. A caregiver may be in charge of paying bills and handling money. If the elderly person doesn't know about their own financial situation, that can open the door to abuse.

What are some of the main reasons people contest a will?

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in will contests on Friday, October 26, 2018.

A will is supposed to express the final wishes of the person who passed away. It is their last chance to influence what is done with their estate. It can divide assets between the children, leave assets to charity or give other instructions for what is to be done with the deceased's physical or financial property.

However, when heirs read the will, they may have a right to contest it. This right extends to those named in the will and those who may have been cut out of a previous will. What are some of the reasons for a challenge?

Can taking a video of a will help eliminate estate disputes?

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in general estate litigation on Friday, October 12, 2018.

Estate disputes often revolve around some indication that the will may not represent the person's true desires. For instance, an heir may contest that:

The person did not have the mental capacity to sign the will
Another heir forged the will
The person was forced to sign the will

One tactic to avoid this is to get a videographer for the day that the will is signed. The footage can show the person's mental capacity -- it's wise to add in a conversation before or after the signing to demonstrate the person's mental capacity at that time -- and it can show that he or she really did draft and sign that specific will. It can also show that the person did it without duress, which they can attest to in the video.

Predisposing factors for undue influence

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in undue influence on Friday, September 28, 2018.

Some people are more likely to be swayed by undue influence than others. While these cases almost always target someone who is already fragile due to age or sickness, for instance, that does not mean all targets are equal.

Part of understanding when and how undue influence occurs lies in looking at what factors make it easier for someone to be manipulated. A few common examples include the following:

The person is suffering from depression. This may lead them to feel like they really do not care what happens with their estate. They may also become withdrawn, meaning they are primarily influenced by just one person.

A spouse already passed away. People sometimes become more vulnerable when they no longer have a spouse to support them. That person influenced them the most before, but now someone else can step in to fill that void.

The person has high anxiety. They also might feel nervous and over-concerned. The person carrying out the manipulation may be able to prey on this anxiety and twist the way the other individual feels.

The person suffers from a diminished mental capacity. This is perhaps the most common circumstance. For instance, an elderly person with dementia may struggle to make prudent decisions on their own. This makes it very easy for someone else to come in and make those decisions for them, guiding their actions. They never even realize that it is happening.

Contesting a will can be a stressful affair

On behalf of Pedder, Hesseltine, Walker & Toth, LLP on Friday, September 28, 2018.

You never pictured yourself in situation where you would have to fight out an issue with your loved ones in a courtroom. However, after the death of a close family member, you found yourself concerned over the contents of his or her will. Once you voiced your concerns, you encountered contention from your loved ones that you did not expect.

Now, you feel a duty to make sure that the executor carries out your loved one's true wishes or, at the very least, that you receive your rightful inheritance. If so, you may have to consider filing a dispute against the estate, which can lead to litigation. Of course, this type of step should not be taken lightly.

California responds to the increased risk of financial abuse

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in financial abuse on Friday, September 14, 2018.

California's fine weather and social protections make it a destination for more and more people. Senior citizens are flocking to the Golden State in unprecedented numbers to live their golden years in comfort and safety. Regrettably, some challenges remain for these Californians.

Although physical and emotional abuse are always priorities for prevention, elder citizens and other at-risk populations face assaults on their finances as well as their health and dignity. People who live alone, reside with their families or spend their time in nursing homes or assisted living facilities may be victims of fraud or undue influence.

What is a no contest clause?

On behalf of Pedder, Hesseltine, Walker & Toth, LLP posted in will contests on Friday, August 31, 2018.

Some people go to extreme lengths to keep others from fighting over their estate. They may worry that someone is going to challenge the will, and they'll include a "no contest" clause. What is this and how does it work?

As you can probably guess from the name, it attempts to make it impossible for someone to contest the will, at least without risk. The clause usually says that anyone who does so will be completely disinherited if they lose the challenge.