Key factors include: diagnoses of dementia, information processing, ability to modulate mode, ability to maintain a thought process and concentrate, ability to modulate mood and affect. Alertness and attention, unnatural dispositions, hallucinations, irrational beliefs.
Although there is a presumption that the one who creates a will or trust was competent at the time of its creation, the person contesting the validity must show only that it is more likely than not that the creator lacked capacity at the time of the instrument’s creation.
If an instrument is the product of another’s excessive persuasion that causes the creator to act or refrain from acting by overcoming the creator’s free will and inequity results. Also, a presumption of undue influence may arise where a beneficiary who has a confidential relationship with the creator and actively participates in the obtaining the signature of the will and unduly profits. A confidential relationship can be anyone, (including family members) in whom the creator placed trust and confidence.
Common factors which demonstrate an improper influencer:
Controlling the testator’s food, medications,
Access to friends, guests, and family members
Secrecy in effecting any changes to wills, trusts, or other instruments
Use of intimidation and force.
Poisoning a testator’s mind against a child or loved one.
LIMITATIONS ON TRANSFERS TO CERTAIN DRAFTERS
California Law creates a presumption of undue influence when an instrument creates donative transfers to certain others, e.g., nonrelative caregivers, business partners, shareholders, employees.
LACK OF PROPER EXECUTION:
In California, the signing of a will must follow the formal requirements of California Probate Code, Section 6110–Signed by the testator or in the testator’s presence at the testator’s direction; by a conservator; and in the presence of two witnesses.
California recognizes a holographic will as long as the material provisions therein are in the testator’s own handwriting.
FRAUD, DURESS, MISTAKE, FORGERY
Also, a creator may have been defrauded or mistaken as to critical facts or simply overpressure a testator. Or, the instrument may be forged.
INTENTIONAL INTERFERENCE WITH EXPECTATION OF INHERITANCE
California has recently created a claim for Intentional interference with expected inheritance. This claim allows the aggrieved heir or beneficiary to seek a remedy against those for the improper interference with a decedent’s testamentary plan.
ADVERSE CLAIMS TO PROPERTY
A California Probate Code, Section 850, Petition can be used to cover vast array of claims dealing with competing claims to property including:
Claims between the estate and surviving spouse
Third party claims against the property
Property titled in decedent’s name but claimed by another.
Claims against those who concealed, or stole property properly belonging to the estate.
ACTIONS BY AND AGAINST THE TRUSTEE
A trustee is a fiduciary duty to act in the highest good faith for the interest of the trust and beneficiaries. The trustee has a duty to comply with the trust terms act in the best interest. The trustee has a duty to account, not self-deal, duty of impartiality.
An heir or beneficiary may challenges the trustee on breaches of these duties, including failure to comply with the trust terms, neglecting, mismanaging trust assets, self-dealing, and hostility towards beneficiaries.