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Dear Quentin,
My grandfather was a successful investor and knew his children very well — he placed all his assets in a trust upon his and my grandmother’s deaths, to be divided evenly among his three children with specific spending restrictions, but unlimited healthcare-related expenses. Any legal actions to challenge or dispute the trust would disqualify that child from being a beneficiary of the trust. Once his three children pass, any remaining assets would be available equally to the four grandchildren (including me).
After my grandfather’s passing but before my grandmother passed, my uncle harassed and pressured my grandmother to change the trust by making him executor, while writing my sister and I out of the trust, and transferring all hard assets solely to him, including my aunt’s house — all unbeknownst to his siblings but with my grandmother’s signature and against the intention of the original trust document.
I wasn’t supposed to know about any of this and, supposedly, I will receive a very small sum of money to “accept” the situation, once all three of my grandfather’s children pass. My aunt (who has no children) and uncle (who has two children) are alive but my father’s health is declining. No legal documents have been shared with me and I wasn’t involved in anyone’s will. To my knowledge, everything went to my uncle, and I am in the dark.
It’s a modern-day Hamlet. What in the “William Shakespeare” am I supposed to do?
Grandchild, Rattling My Chains
“In an act of Shakespearean chutzpah, your uncle decided to take all the spoils for himself.”
MarketWatch illustration
Dear Grandchild,
Unfortunately, your grandfather did not know one child well enough. You and your father must act quickly, given the gravity of these changes, and the circumstances under which they were made.
I’m not a lawyer or a rocket scientist, but one child putting pressure on an elderly parent to cut everyone else out of a family trust — designed to distribute funds equally and with equanimity — sounds an awful lot like undue influence to me. Any judge worth his salt would look at this case, and wonder how this was allowed to happen. Your grandfather died with the belief that his children and grandchildren would be taken care of, but you’re correct. Did the rules of the trust allow your grandmother to change them? That seems like an oversight on your grandfather’s part. In an act of Shakespearean chutzpah, your uncle decided to take all the spoils for himself.
Cue Hamlet monologue:
O, that this too too solid flesh would melt
Thaw and resolve itself into a dew!
Or that the Everlasting had not fix’d
His canon ‘gainst self-slaughter! O God! God!
How weary, stale, flat and unprofitable,
Seem to me all the uses of this world!
Fie on’t! ah fie! ’tis an unweeded garden,
That grows to seed; things rank and gross in nature
Possess it merely. That it should come to this!
But as Hamlet will attest, you’re better off spending more time investigating and less time procrastinating. You should hire a lawyer, and start the ball rolling. Bad actors are banking on your doing nothing, or taking you sweet time. You may be up against a statute of limitations, which varies from state to state and also may depend on the kind of case you are taking against. It’s complicated and fraught and expensive, but if your trust and estate lawyer believes there is clear and convincing evidence, it could also be worth it. In California, most petitioners have 120 days to contest a trust. In Florida, it can range from six months to four years.
In some states, the judge will say the clock starts ticking when you first discover the fraud. “Imagine that a third party convinced your elderly, vulnerable parent to create a trust that they simply were not in a position to understand,” according to Dan Bubley, a lawyer in Tampa, Fla. “This was done entirely without your knowledge. In general, Florida courts will determine that you still have the right to bring an undue influence claim, even if the trust was formed more than four years ago, assuming that you did not know and could not have reasonably known about its existence or the undue influence.”
You can typically contest a will or trust on three grounds: lack of testamentary capacity, undue influence from a family member and improper execution. In New York, a trust contest proceeding must be filed with the court no later than six years after the settler’s death. “In order to make sure that all the assets have not been distributed to the beneficiaries, it is suggested that the trust contest be made sooner than later,” according to Yulia Vangorodska, a New York-based probate and trust attorney. “The court has the jurisdiction to hear and decide a trust contest matter regarding a revocable or non-revocable trust.”
No more delays. “Give every man thy ear, but few thy voice,” Polonius said in one insightful speech in “Hamlet.” Poor Polonius was not generally right about a lot of things, but he was right about that.
You can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com, and follow Quentin Fottrell on X, the platform formerly known as Twitter.
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