Lawyer Monthly - November 2022

In your experience, what are the most common causes of inheritance disputes? Causes for inheritance disputes take many shapes but the underlying theme is that someone feels cheated. In contested estate plans it could be because a disfavoured child is neglected, a needier child is given preference, or a family member who rendered special services such as caretaking or upgrading the decedent’s home seeks additional compensation. Of the more sinister causes, taking advantage of the decedent’s weakness of mind is not only a form of elder abuse; it can constitute fraud. A poorly drafted estate plan or improper administration of the estate are common causes of litigation. A parent will often choose an adult child to serve as trustee, but the task is complicated and frankly a thankless job. That is why I and many of my colleagues recommend the testator appoint a private fiduciary to serve in that role. Under what circumstances can a person be judged to have imposed ‘undue influence’ on a testator? Evidence to prove undue influence is circumstantial, rather than direct. It is a confluence of factors which include the relative weakness of the testator coupled with an undue benefit on the part of the accused. It is a matter of evidence for the trier of fact. Elements include (1) a confidential relationship, (2) active participation in procurement of the will or trust, and (3) undue profit. Fraud can be an element where the person exerting undue influence uses false statements to persuade the testator to do some act. The court will evaluate the decedent’s condition and the relationship between the decedent and the beneficiary. Common confidential relationships exist between caregiver and patient, parent and child, and between spouses. Cases that focus on manipulation of the person’s free will necessarily The Art of Unravelling Inheritance Disputes 46 LAWYERMONTHLYNOVEMBER 2022 Contentious by its nature, the proper resolution of inheritance disputes is one of the more challenging sides of estate planning. San Francisco probate attorney Amanda Ebey sheds light on this vital side of estate planning law in this month’s edition. What considerations must be taken into account to avoid an inheritance dispute arising? Expert Insight

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