What is Undue Influence as it Relates to Estate Planning?
Undue influence is a situation in which one person causes another person to make a decision or do something that they wouldn’t otherwise have done. It is for the benefit of the person who’s making the other person make the decision. For example, a child wants a parent to leave him or her more of the estate and somehow coerced the parent into doing that even though the parent didn’t really want to. There are several different ways that can happen. We’ll talk about that more later. But it is essentially a person in a position of relative dominance or trust causing another person to do something they wouldn’t otherwise have done.
What are some examples of undue influence?
The examples, like the one I just mentioned, also could be not just between children and parents, but also could be a child convincing a parent not to leave distribution to that parent’s stepchildren. If it was a blended family and one spouse died, many times the children of the surviving parent will attempt to convince that parent to disinherit the stepchildren, the children of the deceased spouse. We also see it with caregivers, whether that caregiver is a family member or not. If the person who’s being influenced requires physical care in the home and somebody to take care of them, that caregiver becomes a person of trust and has a lot of authority over the person they are caring for. Many times, the caregiver can overtly or subtly cause that person to change his or her estate plan to inappropriately benefit the caregiver.
Who can bring a claim of an undue influence?
Someone whose benefit from the estate has been compromised because of the undue influence can bring a claim. This would generally be a child of the person who was influenced or an heir, meaning someone who would have inherited. It could also be a beneficiary under a prior will or trust or any other concerned person who has some relationship with the victim. Even a close friend or a neighbor would be able to raise the issue.
What do you do if you suspect undue influence?
The first thing to do is to contact the County Department of Social Services and specifically the Department of Adult Protective Services. It’s very important that you get someone who is objective, experienced in these matters and understands the subtleties of what they’re seeing to become involved and to protect the victim of the undue influence. The first priority is to protect the victim. So, we contact Adult Protective Services.
Secondly, we want to get that victim to a doctor to determine that person’s capacity and level of capacity. If we think legal action needs to be taken, we need to consult with an attorney so that we can pursue legal action to undo the harm that was done by the undue influence as much as possible.
How do I prove undue influence in court?
It’s very difficult to prove undue influence in court because the conduct that leads to the undue influence can be very subtle. The evidence that we need to present to the judge would be medical records from the time around when we believe the undue influence occurred and the doctors’ records of the victim’s capacity and ability. We would look at the victim’s living situation to see:
- Whether he or she is providing for him/herself,
- If he or she is managing his/her own finances,
- If he or she is making his/her own meals,
- If he or she is keeping his/her house up, and
- If he or she is able to take care of him/herself
If victim is not able to do those things, it’s an indication that he or she lacks capacity to some degree. So, if the victim made changes to his or her estate, those changes could very well have been determined and influenced by someone else.
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