Legal Question in Wills and Trusts in California
Incapacity clause in Trust challenged
Stepfather is 85 yrs old and he raised me from from the time I was 8 yrs. Dad lived in my home for 1 year after death of Mom 9/97. Dad has a Will & Trust dated 1/98 with my sister & me as his benificiaries. Dad was diagnosed with Alzheimers by 2 medical doctors 4/98, and I took over handling his affairs as Successor Trustee. I placed my Dad in Assisted Living Facility 1 yr. ago and he hated living there. His sisters moved him to a home closer to them. He now lives 500 miles from me. I continue to pay all his expenses and call him weekly. Sisters hired an attorney to make a change to his Trust naming them as his benificiaries. On the same day as the amendment they had a doctor state in a letter, that he has the competence on this day to change his Trust. I am still acting as Trustee for my Dad. Dad's attorney is acting as though this letter from 1 doctor gives him the capacity to make an amendment to his Trust. Dad has no understanding of what is happening. His Trust document states that he needs letters from 2 doctors to show he is now competent to be Trustee of the Trust. Does this attorney have the legal power to make a change to his Trust, or will my role as the Successor Trustee prevail?
3 Answers from Attorneys
Re: Incapacity clause in Trust challenged
Unless the trust was changed to reflect differently, the provision requiring 2 doctors stands. I suggest you get an attorney to put the issue before the probate court in the county in which the trustee (you) reside. The worst that can happen is that it gets transferred to the county where the trustor now resides.
Re: Incapacity clause in Trust challenged
If, as it seems, yur stepfather's sisters would be his heirs at law if the current trust, rather than the amendment, is found to be invalid for lack of capacity, you may be asking the wrong question. Your first task is to assure that you can prove your stepfather's capacity when the trust was established. If you can do that, the burden will shift to the sisters to prove capacity when the amendment was signed. This would be extremely difficult to do more than a year after an alzheimer's diagnosis. To find out more, visit our website @ labusinesslawyer.com.
Re: Incapacity clause in Trust challenged
As the trustee you have a fiduciary duty to defend the trust as written. You may hire an attorney out of the funds in the trust to defend the trust. You are in a precarious situation and you should have competent legal assistance. Generally a trust cannot be broken except on the terms contained in the trust or if the person attacking the trust can show that it was formed under some sort of false pretenses - i.e., duress, incompetence. YOU NEED AN ATTORNEY.
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