By: Allison R. Burns, Esq.
In creating an estate plan, most parents choose to treat their children as equal beneficiaries. There may be unique situations in which one child has a greater need to be cared for, and this should be clearly indicated in the estate planning documents.
We have seen, however, certain circumstances in which a parent’s favoritism of one child over the others in an estate plan makes us suspect undue influence. This can provide grounds for a legal challenge of provisions in a will or other distributions of property, so when indications of undue influence appear, it is important to investigate.
What is Undue Influence?
Undue influence involves the use of excessive persuasion to prompt someone to do something which is contrary to what they would have done otherwise. In Massachusetts, there are four elements that must be proven to set aside property distributions based on undue influence. The person raising the challenge must prove:
(1) That an unnatural disposition was made
(2) The distribution was made by a person susceptible to undue influence
(3) The distribution benefited someone who had the opportunity to exercise undue influence
(4) The person with opportunity to exercise undue influence did in fact use that opportunity to procure the distribution improperly
To understand what undue influence looks like, it is helpful to consider an example of the type of situation that attorneys see frequently.
An Example of Undue Influence
An elderly parent, who needs daily in-home assistance due to dementia, changes her estate plan within a few months of her death. The new estate plan is drastically different from her previous estate plan which had divided all assets equally amongst her three children. The new estate plan was drafted by an entirely new attorney and gives all her assets to one daughter, with almost no valuable assets going to her two remaining children.
The daughter who is the beneficiary of the new will lives with her mother. This daughter provides daily care to her mother, and, under the new estate plan, this daughter is also designated as her mother’s health care agent, attorney-in-fact, and trustee.
When the mother dies, her other children are shocked to discover that they have been essentially disinherited.
How to Handle Suspicions of Undue Influence
What should those disinherited children do? The sudden favoritism should arouse suspicions of undue influence. (We have also had cases where a neighbor or friend is suddenly favored over all family members in a new estate plan.)
Look for Signs of an Unnatural Disposition
Sudden favoritism can be considered an unnatural disposition–one of the four elements of a legal case of undue influence.
If a decedent had a long-standing estate plan that consistently had the same beneficiaries, any late-in-life change in beneficiaries or the proportion of their proposed distribution could indicate an unnatural disposition. In our example, the mother’s new estate plan heavily favored one child over her other two children, which may be an unnatural disposition if the reason for the favoritism was not clearly stated in the estate plan. If, on the other hand, the plan documents indicated that the mother wanted to leave more to her daughter to compensate her for the care provided, then it could be more difficult to prove that the disposition was unnatural.
Consider Whether the Individual was Susceptible to Undue Influence
The second factor in proving undue influence is susceptibility. Many elderly parents are susceptible to undue influence. When a parent is in need of full-time care or has been diagnosed with dementia or other illnesses affecting the mind, this can be sufficient to demonstrate susceptibility to undue influence.
To demonstrate this element, it is best to obtain medical records or a written evaluation from a medical provider indicating the patient’s susceptibility. If the medical records show that the parent had diminished capacity due to age, medications, or an illness, this is often sufficient proof. In our scenario, we would seek to obtain medical records that confirm that the mother was suffering from progressive dementia which diminished her capacity and show that she was reliant on caregivers to meet her daily needs.
Did the Beneficiary Have the Opportunity to Exercise Undue Influence?
Proving that the favored beneficiary had an opportunity to exercise undue influence is straightforward when the influencer was the primary caregiver for the decedent. If a child is the named attorney-in-fact under a Durable Power of Attorney and health care agent under a health care proxy, this can be used as evidence to support opportunity.
In many cases, the influencer, as the primary caregiver, will begin to isolate the parent and limit access to visitors, including children. In our example, the favored daughter was her mother’s primary caregiver and that daughter moved in with her mother when the dementia progressed. As we see in many cases, this daughter prevented her siblings from seeing or visiting their mother. If they were permitted to visit, the favored daughter would always be present.
Proving Undue Influence
The final element to prove–that the beneficiary did in fact use influence to procure the distribution through improper means–is the most important in making a case for undue influence. Often, testimony from the new estate planning attorney helps to prove this element. For example, if the estate planning attorney testifies that most of the communication in drafting the new estate plan went through the beneficiary, this provides evidence of the use of influence.
Something we see all too often is that the beneficiary was in the room with the decedent and the attorney when the documents were executed. An estate planning attorney should always meet with the client alone and take notes regarding this conversation prior to executing the documents to prevent the appearance of undue influence.
It is important to note whether the favored beneficiary was in a position with a fiduciary duty at the time of influence. Someone with a fiduciary duty must act in good faith and in the other’s best interests. Often, fiduciaries are guardians, conservators, trustees, or attorneys-in-fact. If the favored beneficiary was in a fiduciary role at the time of the unnatural disposition, the burden shifts to the fiduciary to prove that the changes in the estate plan were not the result of undue influence.
Get Help from an Experienced Attorney
Navigating these difficult and often emotional matters requires an attorney that specializes in this area of law and understands the very particular procedural requirements for proving these cases. If you believe your loved one has been unduly influenced, or that they lacked the legal capacity to create suspicious new estate planning documents, we invite you to contact us immediately for a consultation.
Our attorneys have a proven track record with these matters.