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Determining a lack of capacity in estate disputes

Your father got older and had to move into a nursing home. You already knew he had a will, and he had set up a trust for your children, his grandchildren. You thought everything was ready and prepared, but when your father passed away, you were shocked to find that the trust had been altered and placed into the name of a worker at the facility where he was treated.

How could that happen? Your father had dementia, and there is no way he had the mental capacity needed to make that decision. What can you do?

This is a situation where it is a good idea to get your lawyer involved. When your father created a will and trust for your family, it was a legal contract. Now, the changes are technically legal as well, but not if you can prove that he was unable to make the decision to change the trust.

What do you need to show to prove that he was unable to make the decision?

You'll need to prove that he had a lack of capacity. A person who doesn't understand what he or she is doing cannot enter a legal contract with another party. In this case, your father might have thought the worker was a family member or his attorney and signed documents he was confused about. That makes the entire contract null and void, returning it to the previous state when he was legally able to create the trust in a binding form.

Can you pursue a claim against a person who made your father sign a new contract while he was lacking the capacity to do so?

If someone has made false statements, threats or coerced your father to sign documents, then the court can void the contract. You may also consider pursuing a claim against the party who took advantage of your father. It's a good idea to have documentation to prove that your father was unable to make a coherent decision, either by showing he was affected by dementia or other conditions that made it hard for him to know what he was doing.

Your attorney can help you move forward with a claim against a person who took advantage of your father and help you have the trust returned to its rightful owners. It's not acceptable for someone to use people's disabilities or declining health against them.

Source: Nov. 30, -0001

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