Estate planning can be challenging in some circumstances, there may be disagreement between those forming and setting up the plan and the family members, friends, and other beneficiaries involved. Often, these misunderstandings can be cleared up through communication. One particular issue, however, has a way of creating problems for those expecting to be named as beneficiaries in a loved one’s estate plan: undue influence.
Undue influence takes place when a person in a position of power manipulates an elderly or ill person into forming or modifying an estate plan in a way that benefits him or her. Typically, this individual will be a caretaker or someone who has some control over the grantor’s finances or living situation. Whether a health care worker, an accountant or a relative, such individuals likely wouldn’t have been named as a beneficiary had he or she not been in the position to influence the estate planning process.
This is why such an individual is said to have “undue influence,” as his or her role in the grantor’s life normally would not eclipse the role of the deceased’s spouse, children, and/or other family members.
Identifying Undue Influence
When there has been estrangement or other past issues of intra-family disagreement, it can be especially difficult to identify and take action on undue influence. However, there are certain signs to watch out for including most commonly, the appearance of sudden, unexpected and apparently secret changes to an estate plan. In many instances, family and friends of the deceased must engage in litigation, taking their case to court, calling witnesses, and presenting other evidence to confirm the nature of the relationship between the manipulated person and the individual accused of manipulation.
It is possible to prevent undue influence from taking hold or — at the very least — from going undetected. If you are forming an estate plan, including drafting a will, it can be helpful to inform your loved ones about the particulars of your estate plan. This helps remove any element of surprise as to the content of your wishes. If they know what to expect to find in your written estate plan, they will have an easier time accepting it if they already heard it directly from you.
Additionally, there are some actions family members can take to prevent a loved one falling victim to undue influence. If you are concerned that someone may be exercising undue influence on a vulnerable or elderly person in your life, particularly as it concerns the individual’s estate, it’s best to contact an experienced estate planning attorney as soon as possible. Although proving undue influence can be difficult, it’s almost always easier to do so while the grantor is still alive — and preventing a long and potentially costly court battle is worth the investment of time and energy on the front end.
Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi PC, a full-service business law firm based on St. Thomas, U.S. Virgin Islands.