Christopher Brandlin

Christopher Brandlin

A close relative dies and leaves all of his or her money to your brother and virtually nothing to you, even though you were very close with that relative. Is there anything you can do?

Christopher Brandlin, a civil law attorney who practices trust litigation, said there is. However, you need to tread carefully.

“The whole purpose of creating a living trust is to get less court involvement,” Brandlin said. “But sometimes that’s inevitable. If there are issues with the person who interprets the trust, or if you have issues with the beneficiaries of the trust, or if there are people who believe the trust was never properly prepared or executed, that’s when you can get court involvement.”

The most common way people contest a trust is debating the mental capacity of the trustor, or the person who created and/or executed the trust, Brandlin said.

“Someone can always argue the person didn’t have the mental ability or capacity to understand exactly what he or she was signing,” he said. “They really classify this by a capacity declaration. Did the person have the mental capacity to understand the consequences of the document they were signing? In other words, can they manage their own legal or financial affairs? So, you’re petitioning the court to invalidate a testamentary document.”

He also said sometimes these issues go to court just because they’re not written clearly in the first place.

“A lot of times there is an original trust, but there are a lot of amendments after the original trust is created,” Brandlin said. “Let’s say I have two brothers and I keep amending my trust throughout my lifetime and somewhere along the lines I completely exclude one brother from the trust. Or maybe I have two kids and I completely exclude one of them.”

Brandlin added in these situations an attorney can have the court analyze and make a ruling on looking for mental or medical issues that might have led to this decision.

“When I executed this last amendment I either did or did not have the mental capacity to understand the consequences of my signature,” he said. “Usually the court can review the medical records. And if they can pinpoint any case of dementia or something to that effect that around the same time they executed that amendment to the trust, that would be a good reason to invalidate that amendment.”

Another reason to get the court involved, Brandlin said, is if you believe there was any duress or undo influence exerted by one of the beneficiaries over the trustor, with the result being your omission from the trust.

“If you try to mislead or change the mind of someone to exclude another beneficiary, you could be in some trouble,” he said. “Let’s say that a son or daughter is trying to get another sibling left out, it creates a manipulation effect that could lead to this situation in court.”

How often do cases like this happen? Brandlin said the answer might surprise you.

“In California, more likely than not,” he said. “There is a lot more trust litigation in California than in any other state.”

And the reason is simple.

“It’s called materialism,” Brandlin said. “There’s always money involved.”

What are the odds you would prevail in a case like this? Brandlin said it’s difficult, but it can happen.

“If you bring more weight to your case showing there was some type of undue influence or showing there was some type of diminished mental capacity, then, yes, you would have more than a 50 percent chance of winning your case,” he said. “But it also depends on the judge sitting in front of you. Most cases like this are bench trials, meaning there is no jury and the decision is made solely by the judge.”

Is that a good thing?

“I think so,” he said. “The judge knows the law better. You don’t have to explain jury instructions. The judge knows the law like the back of his hand. And sometimes you have a judge who reads a strict interpretation of the law. They’re more objective.”

Persons who would like to discuss any aspect of civil law, including civil litigation, trust litigation and personal injury, can phone Law Offices of Christopher P. Brandlin at (310) 421-4218 or log onto www.brandlinlaw.com.

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