2. Be Aware of Possible Influence or Capacity Issues The Hunt case also affirms the good advice to trust your instincts and to question situations that seem strange. In Hunt, the grantor came into the corporate trustee to ask for their approval of a proposed amendment. In re Hunt, Case No. A-22-499, 2023 WL 3185514 (May 2, 2023) (unpublished). Upon reviewing the amendment, the trustee understood that the proposed change benefitted one daughter over the other siblings. The trustee referred the grantor to her attorney at the time. There had been prior amendments to which the trustee had agreed, but the court emphasized that the corporate trustee had not drafted the prior trust amendments. The evidence showed that the daughter was exercising undue influence over her mother. She would not often let her mother meet with her attorney outside of her presence, provided the information that led to the drafting of the proposed amendment that benefitted her, and even submitted audio recordings that contradicted her position and demonstrated that she belittled and upset her mother. The bank/corporate trustee had no specific knowledge of the audio recordings prior to being asked to approve the proposed trust amendment but, due to its thorough review, was able to avoid approving an amendment that the Court found was the result of undue influence. The bank even received an attorneys’ fees award against the daughter and her attorney, given that the accusations against the trustee were found to be frivolous. The Hunt case is a great reminder to be diligent, meet with individuals in person and refer grantors to counsel if there are questions about capacity, undue influence or otherwise. Lesson: Question requests if there is a hint of undue influence or capacity issues (Are requested changes benefitting one person? How close is that person to the grantor? Does the grantor have an uninterested third party advising them (i.e., an attorney that is not a beneficiary)?) 14 NEBRASKA BANKER
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