Legal Question in Wills and Trusts in California

If your husband's mother had testamentary capacity when she changed her will and was not acting under duress or undue influence, then she had the right to exclude your children (or even any living children of her own, for that matter.) But if she had dementia at the time when she executed the new will, you (your kids, actually) might have a case. There is a high burden of proof to challenge a will, however, and it is expensive. If there is a substantial amount of money involved, it would be worth consulting an attorney who is experienced in estate litigation and having him or her evaluate the evidence.

Sorry for your loss.

Even though someone has been diagnosed with dementia, it does not mean they automatically do not have the capacity to makes changes to their estate plan. And, if someone has capacity, they can make whatever changes they want to their estate plan.

You state that your sister-in-law "took his mother in" for the changes. I assume this means that an attorney drafted the changes to the estate plan. Presumably the attorney was not concerned about your mother-in-law's capacity or there is a chance he or she would not have drafted the changes.

It can be difficult and expensive to try to prove undue influence or lack of capacity. Your children will have to determine if the interest they would have received if the estate plan had not been changed is worth it to take the chance and object or contest the current distribution terms. The process can take a long time and there is no guarantee that they will prevail.

Your children can meet with an attorney to discuss the issues and get an idea of their chances of prevailing.

I agree with the previous attorneys. Cases of financial elder abuse involving an individual's legal capacity or undue influence can carry a heavy burden of proof. If your mother-in-law's dementia has been documented by her doctor, that could go a long way to proving her inability to make changes to her will or trust. Litigation of any kind is a long and expensive process. As has been said, your children ( if adults) or you would need to determine whether the value of their potential share of the estate is worth the expense of the court battle.

There are two possible issues. First, any individual can be susceptible to undue influence. The elderly are particularly vulnerable to undue influence, which is why there are specific laws for their protection. Second, dementia involves diminishing legal, mental, and physical capacities that worsen over time. While it is true that even though your mother-in-law, despite her dementia, may have still had the legal capacity to make estate planning changes, her attorney may or may not have been able to properly assess her. The legal capacity to make changes to one�s estate plan is a much lower standard than having the capacity to enter into contracts, for example. Another factor to be determined is whether the beneficiaries are what is referred to as the �natural objects of her bounty�. This just means that the beneficiaries are individuals whom one usually thinks of as beneficiaries such as spouses or children. Certainly, your mother-in-law�s other children and grandchildren are such natural objects of her bounty. But, so are your children. It does raise questions as to why your mother-in-law could eliminate some of her grandchildren from her trust simply because son died.

Assuming that they are adults, I would recommend that your speak with an attorney to discuss this more fully. If your children are still minors, then you would need to consult with the attorney on their behalf. If I can assist you further, please email me at rosemary [email protected].