Chico, CA asked in Estate Planning and Real Estate Law for California

Q: Can my mother challenge the trust for property my grandmother left me instead of her?

For several years my grandmother had it in her trust that my mother got her house when she passed. In the last year of her life, she offered me the house because she was worried my mom would sell it. I agreed and she amended her trust. She obtained a Note of Capacity from her Primary Care Doctor, amended the trust in a one on one appointment with a lawyer, and then had it notarized that she had done so.

Now that she has passed, we have discovered that she never told my mother she had changed her trust. My mother is threatening to take the house and I'm really scared that she can. What can I do to prevent this?

2 Lawyer Answers
Nina Whitehurst
PREMIUM
Nina Whitehurst
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: Anybody can sue anybody for any reason. Whether or not they will win is a whole different matters. It sounds like your grandmother and her attorney took great care to ensure that the amendment would hold up in court. Although there are no guarantees, chances are if your mother does try to break the amendment to the trust she will lose and, depending on how the trust is worded, she might also lose any inheritance (other than the house) that was left to her in the process.

Unfortunately, there is not a whole lot you can do to prevent your mother from trying to break the trust. The only thing I can think of is to make sure she has a copy of that Certificate of Capacity and encourage her to share that with any lawyer that she tries to hire to break the trust. I know if I were contacted by someone wanting to break a trust and I learned that there was a Certificate of Capacity dated on or around the date of the amendment, I would warn the potential client (the one trying to break the trust) that she would probably be wasting her money.

Gerald Barry Dorfman agrees with this answer

Julie King
Julie King
Answered
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: Your mom can challenge the trust, but that doesn't mean she'll be successful. There are two key issues that frequently arise during challenges: (1) Did the settlor (the one who set up the trust, i.e., your grandmother) have her mental capacity when she made the decision to give you the home, meaning did she understand what she was doing? and (2) Was anyone pressuring, bullying or forcing your grandmother to make the change? As to the first issue you said your grandmother had a Physician's Certification prepared and, presumably, the physician said your grandmother had not lost her mental capacity. Your mom can challenge this with other evidence that your grandmother had lost her capacity, and it will be up to a jury or judge to decide which evidence is most persuasive. From your question, it appears that you did not put any pressure on your grandmother to give you the home but, again, your mother can bring forth evidence that someone else engaged in elder abuse and forced your grandmother to do something against her will. If you have the truth on your side, don't worry. A notice will go out to all beneficiaries of the trust giving them a certain amount of time within which to challenge the trust. If the challenge isn't made during that time, you're good! Best wishes.

Jackie Marie Howard agrees with this answer

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