Legal Question in Wills and Trusts in California
What is considered ''undue influence''?
My grandmother wrote a living trust 10 years ago that left my mother as the executor and all assets to her 6 grandchildren. Last week my uncle showed up with a new will he had her sign. It leaves everything to him. He had her sign this about 2 years ago. She has severe dementia and was picked up by the police around that time for wander 2 miles away from home and not knowing her name. They kept her for 6 hours since she can only speak Italian.
My question is...Can his will be valid when she did not even know what she was signing. He said he had her declared ''competent'' however she was picked up by the police as mentioned above. In addition, he had to translate the entire meeting since she was not speaking English. A week before he had her sign he also took 40,000 out of her account. Does that make any difference. We have since then changed the account so it requires 2 signatures. What do we do now?
3 Answers from Attorneys
Re: What is considered ''undue influence''?
Your first step is to have your mother petition to be appointed as your grandmother's conservator. Once appointed, she can file an action to recover the $40,000.00 taken by your uncle. She may also wish to consider filing a delcaratory relief action, to have the will your uncle had your grandmother sign be delcared null and void. Doing this while your grandmother is still alive, rather than after she has passed away, is likely to save a good deal of money and emotional trauma for your family. If you would like to learn more, please do not hesitate to contact our office.
Re: What is considered ''undue influence''?
You need to apply for a conservatorship as she is incompetent to handle her own affairs. The will should be declared void due to lack of capacity. Please call me directly at (619) 222-3504.
Re: What is considered ''undue influence''?
You can't do anything about the will until she dies, but there is something that can be done in the interim. You can attempt to establish a conservatorship through the probate court in the county in which she lives. Once that is established you can seek to recover funds wrongfully taken and will provide evidence that she may have been incompetent when the new will was made. Since you have to do this in the county in which she lives, it is best to get an attorney from that county.
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