What can I do about my brother taking advantage of my incompetent father through a trust?

Question: I think that my father is incompetent and that my brother is taking advantage of him. My brother has never been able to hold a job and has always lived at home. He does help my father out with some errands, but what he does is nowhere near worth all the room, board, and spending money he gets. I understand that my father has set up a trust with a large part of his assets, to provide for my brother after my father is gone. The lawyer who drew this up is one my brother found for him. I think my brother influenced my father to create this trust. Can my sister and I challenge it? We live in Ohio.

Response: Maybe—though probably not. To begin with, Ohio law does allow a trust to be set aside or voided “to the extent its creation was induced by…. undue influence.” (Ohio Revised Code 5804.06[http://codes.ohio.gov/orc/5804.06]). It gives “undue influence” the same meaning it generally has in wills or estate cases, which is that a person’s will (their willpower or intention) is “overpowered” and he or she is made to do something which that person would not normally do of their own free will. See Ross v. Baker, 101 Ohio App.3rd 611 (1995).

However, the presumption is that trusts (and wills, for that matter) are valid unless shown otherwise. That generally puts the burden of proof on the person(s) challenging them, to show that there was undue influence trust. Worse, it must be shown by “clear and convincing” evidence, which is a pretty high standard—it’s more than it takes to win a typical personal injury case, though less than it takes to convict someone of a crime. See Ament v. Reassure Am. Life Ins. Co., 180 Ohio App.3rd 440.

Looking at the facts you describe, while your brother may have “influenced” your father, there’s good reason to think it wasn’t undue influence—or at least that you won’t be able to show that it was to a level of clear and convincing evidence. After all (1) your father has been letting your brother live with him and has been providing for your brother; (2) your brother has been providing at least some help for your father. Under those circumstances, it’s easy to imagine that your father would want to provide for a somewhat hapless child that he has already been helping out, especially when that child has been your father’s companion and helper.

Answered by Steven Sweig

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