As a child, the adults in our lives were there to help look after us and protect us from falling prey to predators. But as we become adults, we find that the roles are becoming reversed: now we protect our elders. As our loved ones age, we sometimes notice a decline in their mental abilities causing them to become vulnerable to the predatory nature of unscrupulous people. Sometimes, those people are strangers, but more often, it is perpetrated by a close relationship, such as a neighbor, friend, or child. When these people manipulate Grandma into giving away money, changing her will, or leaving her life insurance and retirement accounts to them, it’s known as undue influence. Unfortunately, Grandma’s intended beneficiaries often only discover this manipulation after she has passed away. Knowing the signs of undue influence is important to prevent it from happening not only to Grandma but also to ourselves or our other loved ones.
Disclaimer: The information provided is intended for informational purposes only and should not be construed as legal advice.
What is Undue Influence?
Undue influence occurs when someone pressures another person to manipulate their decisions about the distribution of their estate. This influence can be subtle or overt, often involving taking advantage of a vulnerable individual’s trust or dependency. Common scenarios include:
- Isolation: The influencer may isolate the testator from other family members or advisors, creating a sense of dependency.
- Coercion: The influencer may use threats or manipulation to control the testator’s decisions.
- Persuasion: The influencer may use emotional manipulation or deceit to convince the testator to change their estate plan.
Preventing undue influence:
The first step to avoid an undue influence scenario is to have a keen awareness of your loved one’s surroundings and relationships. It is important to be vigilant and proactive in safeguarding their interests. You can help ensure that their wishes are respected, their well-being is preserved, and their autonomy is upheld. Many people stay proactive by utilizing the following methods:
- Maintain Communication: Regular and open communication is a powerful tool for identifying unusual circumstances or behaviors early on. By communicating via various methods, such as phone or video calls, letters, and in-person visits, you can stay informed about who else is routinely with your loved one. If you notice that Grandma “can’t talk to you” without a particular person present, it could be a sign of something nefarious, and you should be extra diligent. This proactive step provides you with the foresight to protect your loved one’s interests.
- Legal Counsel: Encourage your loved one to consult with an attorney specializing in elder law to review important documents and ensure their wishes are properly documented and protected. An Attorney can advise on other options that may provide more robust protections, such as Guardianship & Conservatorship.
- Support Network: To avoid isolation, your loved one should maintain a strong support network of trusted friends and family members who can provide additional perspectives and support. This network can help identify and prevent undue influence by providing a diverse range of viewpoints and by regularly checking in on the older adult’s well-being. Suppose Grandma does not currently have these people or they live too far away. In that case, one method to provide this support is by asking several friends and family members if they can commit to calling and checking in with Grandma on a particular day of each month.
- Educate and Empower: Having direct and overt conversations about the signs of undue influence can be very effective. However, if Grandma is “not one to be lectured to,” then you can simply share stories or articles as a passive way to empower her to make informed decisions regarding her estate, finances, and personal care.
By staying vigilant and proactive, you can help prevent undue influence before it becomes a big, expensive issue.
Discovering Undue Influence After Death
As stated before, the manipulation of others is often not discovered until after death. It can happen in several ways, such as finding out that Grandma made the influencer a joint owner or beneficiary of all of her assets, so now there is nothing left to inherit under the Will. Sometimes, it is discovered when the inheritance one is about to receive is substantially less than Grandma said there would be, only to find out that the influencer moved funds to themselves before Grandma passed. When faced with these situations, this is where Estate and Elder Law Attorneys help hold the influencer accountable for their actions. A civil law suit can accomplish this goal and sometimes a criminal action may be pursued as well. If the court finds that the will was created or modified under undue influence, it may declare the will invalid. In such cases, the court may either enforce a prior valid will or, if no such will exists, distribute the estate according to New Jersey intestacy laws. The influencer may also face legal consequences, such as being required to return any assets they obtained through undue influence.
In New Jersey, the challenger to the Will has the first burden of proving that there was both a confidential relationship between the influencer and the decedent and suspicious circumstances surrounding that relationship. If an initial showing of undue influence can be shown, then the influencer will have the burden of providing evidence that there was no undue influence and that the decent understood her actions and acted voluntarily. If the court finds that the will was created or modified under undue influence, it may declare the will invalid. In such cases, the court may either enforce a prior valid will or, if no such will exists, distribute the estate according to New Jersey intestacy laws. This legal process provides a sense of security, knowing that there are measures in place to hold the influencer accountable for their actions.
If you believe that a will or trust was created or modified under undue influence, you can challenge its validity in court by working with an experienced estate litigation attorney who understands the elements of the specific state law. The process typically involves gathering evidence, such as compelling witness testimony, medical records showing the testator’s vulnerability, and documentary evidence like emails or letters. This evidence will be presented in court to prove that the will or trust was indeed affected by undue influence.
If you suspect that a loved one’s estate plan was affected by undue influence, our experienced team at LSS Law is here to help. Contact us today for a consultation to discuss the specifics of your situation.
