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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 36982
Experience:  Texas lawyer for 30 years in Estate law
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I would like to know if my mother's trust can be amended

Customer Question

I would like to know if my mother's trust can be amended with my knowledge if I have durable power of attorney in the State of Arizona?
Submitted: 2 months ago.
Category: Estate Law
Expert:  RayAnswers replied 2 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

Expert:  RayAnswers replied 2 months ago.

I can be amended but you would have right to challenge here that she lacked capacity and that there was undue influence.This is similar to a will contest, you challenge any amendment as not being proper here as she lacks capacity to understand what she did and other parties may have unduly coerced here in all of this.You have rights to challenge through the courts and have it denied on this basis.In that situation court finds original trust was valid and no amendment allowed under Arizona law.

I appreciate the chance to help you please let me know if you have more follow up.

Expert:  RayAnswers replied 2 months ago.

Reference

Here in Arizona there is case law that governs many important aspects oftrust contests. Arizona appellate courts have ruled that where there is nocontrolling case law, the court will give great weight to the Restatement of theLaw concerning trusts. The Restatement is prepared by distinguishedscholars who are members of the American Law Institute. A verycomprehensive Third Restatement of the Law of Trusts was published in 2003.

The Third Restatement states here that trusts are often"will substitutes" and that they should be treated very similarly towills in many respects. It goes on to explain that even though two witnesses arenot needed to validly execute a trust, the same law that governswill interpretation of the wording in wills governs questions of trustinterpretation.

And, just like wills, trusts can be struck down if they werethe result of undue influence of another or if they were made by a person wholacked sufficient mental capacity to sign a trust.

A trust is more vulnerable than a will to challenge in thefollowing respect: Usually trusts specify the method for their amendment. If the trustor does not follow the rules that he himself established for theamendment of his trust, the amendment will fail.

Expert:  RayAnswers replied 2 months ago.

You may well have facts to challenge this amendment through the courts like a will contest if there was lack of capacity or undue influence present as it seems there may be.

Thanks again.