My sister and I are co-executors and co-trustees of my mother's trust. Until 2005, my mother's assets were divided equally between us. As my mother became older, she began to depend more and more on my sister who lived much closer to her than I did. However, I have always had a good relationship with my mother; I visited her regularly; and I was her primary support system when she wintered in Florida for three or four months a year. Then in May, 2005, at the age of 97 years and 8 months, my mother amended her trust and left her home to my sister. I inadvertently found out about this only three months before my mother died but she was ill and no longer lucid. There was nothing at all that I could do about it at this point. I feel that pressure was brought to bear on my mother and that she would never do such a thing on her own volition.
Now, here is my problem. I am not willing to execute the trust as it now is, for I would have to accept the amendment leaving the home valued at $925,000 to my sister while the remainder of my mother's assets valued at less than $200,000 would be divided equally between my sister and myself. But, if I do not sign the trust agreement, my sister can seek a court order appointing herself as sole trustee of my mother's trust. What should I do?
-- Anonymous
A.
Because you feel your mother was unduly influenced to change the disposition of her house, you first have to find some evidence to support your position. Who prepared the change to the trust? If it was a lawyer, try to see him and ask about the circumstances of the change in the trust. You also need to find witnesses who were present when the change was signed, if there were any, and find out from them what they observed about your mother at the time she signed the change. You should gather evidence of your mother's mental and physical health at the time she signed the change. In order to have the change cancelled on the ground of undue influence, you will have to go to Surrogate's Court and file a challenge to the trust amendment. For this you will need a lawyer.
It is not an easy task to invalidate a portion of a trust, and it could be very expensive. The bottom line is that it is possible to challenge a provision of a trust if the proper evidence is available.
