Has this happened to someone you know? An elderly widowed father remarries to a much younger woman. Within a year, concerns about abuse arise (e.g., emotional, withholding sex/affection, etc.) and the children express their concerns to the father. Subsequently, the children are told the father doesn't want to see them anymore. Later, the adult children find out the will has been changed and most assets are now being designated for the new wife, instead of equally spread to all the children as previously intended.
What is Undue Influence?
Undue influence is a form of abuse. It is a process of controlling another person's free will by means of applying emotional, psychological or even physical persuasion, aimed at gaining a benefit that would not otherwise be given to the abuser. The abuse is often inflicted on someone with diminished mental capacity or physical abilities.
In estate planning, undue influence is typically employed to gain more than a fair share in a last will and testament or family trust, or increasing their trust fund distributions (thereby taking assets and monies away from intended heirs).
Indicators of Undue Influence include:
- Change in behavior of the victim such as eating habits and everyday routines
- Isolation from family or friends, discontinuing regular visits
- Interference when communicating with the victim, or the abuser is always present when attempting to communicate
- Injuries, often claimed to be accidental, such as bruising or broken bones
- Abuser gains authority to access or control financial assets
- Excessive gifting by the influenced person, or large amounts of time spent with one individual
Who Are the Abusers?
Abusers come in many forms, including: parents, children, spouses and step-spouses, beneficiaries, trustees, caregivers, family friends, neighbors, or service providers (health care workers, attorneys, spiritual advisors, contractors, counselors, etc.).
Given that the goal of abusers is financial gain, it is wise to not limit your perception of who might be a perpetrator. For example, why would a pastor calling on your elderly mother want to gain a part of her estate? Could the pastor have debt, gambling, infidelity or other financial motives? Similar to embezzlement, you don't know the financial situation of the individual that would cause them to be willing to commit a crime.
When Should Legal Counsel be Involved?
As indicated, undue influence cases are common in estate disputes, trust contests, and will conflicts. If you suspect undue influence, seek the advice of a probate and trust litigation attorney, in order to help protect the victim and intended beneficiaries. Even if the victim has passed, undue influence can be a component of contesting a will. If you are falsely accused of undue influence, a probate and trust litigation attorney can help protect you.
For assistance, contact Mortensen & Reinheimer, PC at (714) 384-6053 or use our online contact form. You can also learn more about probate and trust litigation on our website.
About the author:
Noah B. Herbold, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). His primary focus is assisting clients with litigated matters such as: Trust Contests, Breach of Trust, Fiduciary Appointment and/or Removal, Asset Ownership, Beneficiary Rights, Determination of Heirship, Elder Financial Abuse, Property Disputes, and Conservatorships. Contact Noah at firstname.lastname@example.org.