Estate Planning – Undue Influence Considerations

Copyright 2006 Ronald Hudkins

Often during the final years of a dear friend’s or relative’s life some person or persons will take over the task of caring for their sick and elderly friend or relative to a greater degree than the other people in their lives. This is sometimes due to sheer geography where the aged or sick person lives nearer to one set of relatives than to another. In addition, some relatives or friends may be better suited to dealing with the realities of sickness, age and dying than are others. There are some people who do not have the temperament to be care givers for those they love dearly, because they cannot bear to see a parent decay and succumb to age and death, particularly if the process is prolonged.

Those who are elderly, sick and in need often attempt to show their gratitude for the care that they are being given through bequests in their will. It seems only fair that the relative who is actually caring for their loved one should be rewarded by the one who is being cared for. However, there is the potential that the other heirs want an equal share of the bequest regardless of who took care of whom in the final days of a person’s life. Sometimes, for no other reason than that they want to feel that they were loved equally and view an equal share of the will as a demonstration of that.

When this happens, a common means of contesting a will is employed that involves a claim of undue influence. This claim is essentially grounded in the idea that a relative exercised an extreme amount of coercive ability with respect to the deceased. It must be true that the person who is claimed to have undue influence also received an ‘undue benefit.’ Undue Influence is usually combined with a claim of lack of capacity in one form or the other. The less forceful the waning personality of the deceased becomes in the eyes of the courts, the easier it is to establish the dominance that the undue influencer had over that person. After all, it is difficult to say that a strong, healthy, fully cognizant adult was duped by his/her insidious caregiver. To be sure, there are people who try to take advantage of those whom they care for, but there are a great many claims of undue influence raised by those that simply didn’t pay attention to their elderly loved ones, yet expect and equal share of the bequest. Another interesting facet of undue influence claims is that they can involve the degenerated mental state of the will maker without relating that state to the property or to whom it goes. Part of the undue influence claim is showing that the person being influenced was addled and that the person doing the influencing used that to their advantage. This is unfortunate, because the elderly often become more absent minded or less mentally acute than they once were, and yet they may still be attempting to reward a relative who has come to their aid when it mattered to them the most.

Undue Influence is also shown by proving an opportunity to exercise such influence. In one case a test of “psychological domination” was used to prove undue influence. But, the central question is always whether an unwarranted coercive force or ability existed and was exercised. This is problematic, in that there may be one child or relative whose advice really is important to the will maker, but that fact is not attendant to undue influence so much as a general respect for that person’s counsel.


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