My cousin has a best friend who is a lawyer who wants to draw up a Living Trust papers with my uncle who now is not in his right mind so there is a conflict of interest what is not in my uncles best interest just hers how can I fight this
The nuclear option is this: Send a Certified Letter return receipt requested to the attorney your cousin is planning to use stating that it is your sincere belief that your uncle is incompetent.
This will most assuredly give the attorney pause.
Be prepared for heavy fallout.
You are not a medical doctor. Your interpretation of his competency may be wrong...and you are surely serving a self-interest.
Thanks for the updated information. Let me see if I understand this situation correctly.
Situation:
A Will has been executed; there’s no information on whether or not Uncle’s house is conveyed under the Will and/or to whom, but presumably not to the cousin who wants to become involved.
it’s unclear whether or not a Trust has been executed or is being contemplated. You state the cousin will not let you see a copy. This suggests either that one has been signed or that the cousin has a draft.
Clarification on this is needed.
1. Uncle is in hospice.
What does HE want to do? Apparently he's already executed a Will, and to whom does he leave the house? To his daughter, 1/2 half to you, to the cousin who wants to change the Will (allegedly to avoid Probate)?
But you wrote he "now is not in his right mind". To me, that settles the whole issue right there. It's his property, his Will and would be his trust, and he cannot execute one if he's "not in his right mind." Period.
Is Uncle aware that your cousin wants to change HIS will? What's his opinion, and what does your uncle feel about this, to the extent he can express his opinion? That's the real question here.
If the aggressive cousin forced him to sign, she'd probably be committing fraud as well as possible coercion. I'm sure a prosecuting attorney might think up other charges.
The lawyer, cousin's friend, needs to be informed of this situation. If he/she ignores it, he/she is likely committing malpractice, should be reported to the State Bar Grievance Committee for investigation, and hopefully disbarred.
He/she would have to go to the hospice to get your uncle’s signature and initiate a conversation with your uncle to ensure that he’s capable of understanding what he’s doing. Given the complexity of trusts, it’s difficult to understand when one isn’t in a terminal state. When “not in his right mind”, it would likely be impossible. At that point, if he/she is a decent, honorable attorney, the whole issue of signing a trust would be terminated.
2. Uncle's daughter.
Is she a beneficiary under Uncle's Will and does the other cousin plan to change this? If so, what's Uncle's daughter's position in all this? Is she amenable to creating a Trust, and if so, why isn't she handling the issues with her own attorney? Or, as I suspect, is she going to be squeezed out of the inheritance process entirely by the new Trust?
3. You.
I think and hope you see the potential for fraud and elder abuse here, and are trying to find a way to stop it. You’re allegedly going to inherit ½ of the house whether the cousin is successful in getting a Trust pushed through.
Why would she have told you this? To get you on her side, or to prevent you as potential heir from contesting any changes?
You’re also asking what you can do. This is tricky, because the police might see this as a family conflict and dispute over inheritance, but you do need to address the issue as you have knowledge of a potential crime.
There's another issue of fraud against an incapacitated person, but I'd have to research to determine if your Uncle could be considered one, and whether or not there are higher criminal penalties for these kinds of crimes.
When your Uncle created his Will, did he also create a Durable Power of Attorney appointing someone to act on his behalf if he became unable to? If so, who is that person? This person should contact law enforcement re an attempted elder fraud. This person also might go to the county offices and inquire how to get a PPO to keep the wayward cousin physically away from your Uncle. Police and the PPO staff can help in asking what other restraints on contact should be considered.
If there is no DPOA and no proxy to handle your uncle’s affairs, I think both you and Uncle’s daughter, assuming she understands and agrees with the gravity of the situation, should go to the police. It wouldn’t hurt if other relatives accompanied you to support the family concern.
Either or both of you can also find a good estate planning or elder law attorney who also handles will challenges and/or litigation. If you need advice on how to do this, just post back. He or she should have experience in will contests and litigating challenged Wills.
An attorney can also initiate a Petition for a TRO (Temporary Restraining Order) to prevent the cousin from meddling in your Uncle’s estate. A TRO could also prevent her from making any contact with your Uncle, and possibly you and your Uncle’s daughter. That would depend on the attorney’s approach to the PfTRO and whether or not a judge agrees.
At this point, I think the best way to keep the meddling cousin away from your Uncle is either through a PPO or court ordered TRO. If the injunctions are violated, she could be subject to incarceration. The hospice people would have to be notified that if she did approach your Uncle, they should immediately contact the police who would come and pick her up, either warning her or taking more aggressive action, especially if she became belligerent. She could find herself sleeping in a jail cell if she challenges the police.
If I’m interpreting this right, the cousin is trying to make an end run around your Uncle’s previous plans so she can get a share of the house, also attempting to extract a commitment of no inheritance challenge from the daughter.
cousin is not his daughter .She wants to change the will into a trust so it doesn't go into probate and she does not want his daughter to contest the will . He also changed his mind to where I get half.I have been in his life where my cousin just came into his life just in his last week of life.cousin will not give me the lawyer's name or number or give me a copy of the trust
If your uncle has been diagnosed with dementia, get a statement from the diagnosing physician to this effect. That would make any legitimate attorney be concerned about whether or not your uncle has the necessary capacity to execute documents.
If your uncle is having some temporary mental difficulties, that might be a different situation.
But I'm wondering about the family dynamics here. If I understand it, your uncle's daughter is the one who wants her buddy to create the Living Trust. Does your uncle understand this, what the purpose of the trust is, and how it operates?
Is this attorney's practice area estate planning or elder law? If not, he/she should NOT be creating a Living Trust. These are complex documents and not for someone who doesn't specialize in them. In addition, there are necessary ancillary documents that are required as well, one being a Pour-Over Will.
And typically a Livign Will or Advanced Directive as well as a Bill of Sale are also prepared. An attorney not in the specific practice area might not do this and thus create an inadequate estate plan.
I can't help wondering also how you're involved in supporting your uncle against his daughter. It seems as if there is some family conflict here which could affect your uncle's best interests.
This will most assuredly give the attorney pause.
Be prepared for heavy fallout.
You are not a medical doctor. Your interpretation of his competency may be wrong...and you are surely serving a self-interest.
Situation:
A Will has been executed; there’s no information on whether or not Uncle’s house is conveyed under the Will and/or to whom, but presumably not to the cousin who wants to become involved.
it’s unclear whether or not a Trust has been executed or is being contemplated. You state the cousin will not let you see a copy. This suggests either that one has been signed or that the cousin has a draft.
Clarification on this is needed.
1. Uncle is in hospice.
What does HE want to do? Apparently he's already executed a Will, and to whom does he leave the house? To his daughter, 1/2 half to you, to the cousin who wants to change the Will (allegedly to avoid Probate)?
But you wrote he "now is not in his right mind". To me, that settles the whole issue right there. It's his property, his Will and would be his trust, and he cannot execute one if he's "not in his right mind." Period.
Is Uncle aware that your cousin wants to change HIS will? What's his opinion, and what does your uncle feel about this, to the extent he can express his opinion? That's the real question here.
If the aggressive cousin forced him to sign, she'd probably be committing fraud as well as possible coercion. I'm sure a prosecuting attorney might think up other charges.
The lawyer, cousin's friend, needs to be informed of this situation. If he/she ignores it, he/she is likely committing malpractice, should be reported to the State Bar Grievance Committee for investigation, and hopefully disbarred.
He/she would have to go to the hospice to get your uncle’s signature and initiate a conversation with your uncle to ensure that he’s capable of understanding what he’s doing. Given the complexity of trusts, it’s difficult to understand when one isn’t in a terminal state. When “not in his right mind”, it would likely be impossible. At that point, if he/she is a decent, honorable attorney, the whole issue of signing a trust would be terminated.
2. Uncle's daughter.
Is she a beneficiary under Uncle's Will and does the other cousin plan to change this? If so, what's Uncle's daughter's position in all this? Is she amenable to creating a Trust, and if so, why isn't she handling the issues with her own attorney? Or, as I suspect, is she going to be squeezed out of the inheritance process entirely by the new Trust?
3. You.
I think and hope you see the potential for fraud and elder abuse here, and are trying to find a way to stop it. You’re allegedly going to inherit ½ of the house whether the cousin is successful in getting a Trust pushed through.
Why would she have told you this? To get you on her side, or to prevent you as potential heir from contesting any changes?
You’re also asking what you can do. This is tricky, because the police might see this as a family conflict and dispute over inheritance, but you do need to address the issue as you have knowledge of a potential crime.
There's another issue of fraud against an incapacitated person, but I'd have to research to determine if your Uncle could be considered one, and whether or not there are higher criminal penalties for these kinds of crimes.
When your Uncle created his Will, did he also create a Durable Power of Attorney appointing someone to act on his behalf if he became unable to? If so, who is that person? This person should contact law enforcement re an attempted elder fraud. This person also might go to the county offices and inquire how to get a PPO to keep the wayward cousin physically away from your Uncle. Police and the PPO staff can help in asking what other restraints on contact should be considered.
If there is no DPOA and no proxy to handle your uncle’s affairs, I think both you and Uncle’s daughter, assuming she understands and agrees with the gravity of the situation, should go to the police. It wouldn’t hurt if other relatives accompanied you to support the family concern.
Either or both of you can also find a good estate planning or elder law attorney who also handles will challenges and/or litigation. If you need advice on how to do this, just post back. He or she should have experience in will contests and litigating challenged Wills.
An attorney can also initiate a Petition for a TRO (Temporary Restraining Order) to prevent the cousin from meddling in your Uncle’s estate. A TRO could also prevent her from making any contact with your Uncle, and possibly you and your Uncle’s daughter. That would depend on the attorney’s approach to the PfTRO and whether or not a judge agrees.
At this point, I think the best way to keep the meddling cousin away from your Uncle is either through a PPO or court ordered TRO. If the injunctions are violated, she could be subject to incarceration. The hospice people would have to be notified that if she did approach your Uncle, they should immediately contact the police who would come and pick her up, either warning her or taking more aggressive action, especially if she became belligerent. She could find herself sleeping in a jail cell if she challenges the police.
If I’m interpreting this right, the cousin is trying to make an end run around your Uncle’s previous plans so she can get a share of the house, also attempting to extract a commitment of no inheritance challenge from the daughter.
Is this an accurate assumption?
If your uncle is having some temporary mental difficulties, that might be a different situation.
But I'm wondering about the family dynamics here. If I understand it, your uncle's daughter is the one who wants her buddy to create the Living Trust. Does your uncle understand this, what the purpose of the trust is, and how it operates?
Is this attorney's practice area estate planning or elder law? If not, he/she should NOT be creating a Living Trust. These are complex documents and not for someone who doesn't specialize in them. In addition, there are necessary ancillary documents that are required as well, one being a Pour-Over Will.
And typically a Livign Will or Advanced Directive as well as a Bill of Sale are also prepared. An attorney not in the specific practice area might not do this and thus create an inadequate estate plan.
I can't help wondering also how you're involved in supporting your uncle against his daughter. It seems as if there is some family conflict here which could affect your uncle's best interests.