HOW MUCH INFLUENCE IS TOO MUCH INFLUENCE?

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Sadly, we have all heard or read the stories of the elderly parent or relative who, unbeknownst to family, changed his or her will or trust and left everything to the “caretaker.”  The caretaker can sometimes be a paid professional and, other times, can be the unpaid, kindly next door neighbor who simply checks in from time to time or takes the elderly person to the doctor.

When the caretaker’s role goes beyond the care of the elderly person and morphs into that of a beneficiary in a new will or trust, the promises made for years to family members are suddenly forgotten and biological relationships are upended and replaced by a virtual stranger who now claims that she is the only one who really cared about and understood the elderly person.

Unfortunately for the heirs, this new will or trust is often first discovered after the death of the parent or relative.  The caretaker beneficiary, who initially seemed so kindhearted, becomes the self-proclaimed advocate for the decedent, stating she knows what the elderly person wanted and she intends to fight for her “right” to the money that the decedent wanted her to have.

The problem is further complicated if the elderly person is considered legally competent at the time the estate plan is signed.  If competency is not an issue, the only remaining basis for invalidating the new will or trust is establishing that at the time the new estate plan was made, the elderly person was subject to “undue influence.”

In Ohio, to prove a case of undue influence and ultimately invalidate a will or trust on that basis, four elements must be proven: 1. a susceptible party; 2. another party’s opportunity to influence the susceptible party; 3. actual imposition of improper influence; and 4. a result showing the effect of the improper influence.  Typically, most undue influence cases are not proven by direct evidence but rather by circumstantial or indirect evidence.

Circumstantial evidence includes medical records of the elderly person, anecdotal observations from friends and family, whether the new “caretaker” isolated the elderly person, and the extent to which the “caretaker” was involved with the elderly person.  For example, a particularly problematic fact is the extent to which the “caretaker” is involved with drafting the new plan – did the caretaker identify the need for a new plan or identify and create the appointment with the attorney or provide transportation to the attorney?  Any or all of these facts can suggest the new estate plan was the result of undue influence.

Challenging a will or trust based on undue influence is typically an uphill battle.  The type of influence that must be established is influence that  actually substitutes the elderly person’s plans or desires with those of the caretaker.

The influence must be of such magnitude that the decedent’s power of resistance is overcome, resulting in a distribution of property that would not otherwise have been made.  The mere existence of undue influence or an opportunity to exercise it is not sufficient to invalidate the new will or trust.

Although proving undue influence can be a steep hill to climb, if a caretaker relationship, or any other type of confidential relationship, can be shown to exist, the law in many counties actually shifts the burden of going forward with evidence from the family member to the caretaker.  What this means is that where there is a claim of undue influence that results in a new will or trust and a caretaker is now the primary beneficiary, a presumption of undue influence is sometimes recognized under the law.

Because of the presumption, the burden of going forward with evidence to show that the caretaker conduct was free of undue influence and that the decedent acted voluntarily becomes the burden of the caretaker.  As a practical matter, this may mean that many undue influence claims that involve caretakers are more apt to not be readily or summarily dismissed without a full trial.

Undue influence claims that involve caretakers are fact specific and often turn on the personalities involved.  In any event, before embarking on a full-blown trial for such a claim, it is always important to have a good understanding of what can ultimately be won in Court.  The legal expense of litigation, including expert and legal fees, may not be justified if there are insufficient assets at stake.

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About Erin A. Moosbrugger

Sadly, we have all heard or read the stories of the elderly parent or relative who, unbeknownst to family, changed his or her will or trust and left everything to the “caretaker.” The caretaker can sometimes be a paid professional and, other times, can be the unpaid, kindly next door neighbor who simply checks in from time to time or takes the elderly person to the doctor.