How to Stay Respectful (and Legal) in Parents' Estate Planning

Avoiding Undue Influence
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Writing a will is much like budgeting and exercise: it sucks, yes, but it’s necessary. The process of estate planning is only more painful if one spouse has already passed. In this situation, a surviving elderly parent may enlist the assistance of their adult children to manage and divvy up finances. While adult children are an asset, too much of their influence can unleash unwanted legal problems, especially if the parent is experiencing diminished mental capacity. In these cases, bitterness over the will could even lead to legal charges of “undue influence.”

With respect to kids’ influence on their parents’ estates, how much is too much?

What is undue influence?

Every state maintains some type of undue influence law to address overreach in the estate planning process. Generally, proving that undue influence occurred involves a checklist, all of which must be proven by the party asserting the problem. In general, undue influence has happened when:

  • The deceased person (“decedent”) was susceptible to the undue influence
  • The accused had the opportunity to influence the decedent
  • The accused was influencing the decedent in order to gain favor
  • The accused was in a position of trust and/or authority over the decedent

In almost all states, the elements necessary to prove an undue influence case are found in common law (or “case law”), as opposed to written law made by the legislature. This means that the court’s decision will be based on how convincing the evidence is, as well as precedence set by similar cases.

How does it happen?

Undue influence is much more than a simple conversation with Mom about her wishes. It requires immense manipulation. These cases often occur in nursing homes and long-term care facilities, where an influencer will build trust with the senior person. An adult child would have normally have this trust as well, especially if they serve as the primary caretaker. Over time, the elderly parent comes to rely on one child for daily care, and may then become susceptible to undue influence.

Undue influence only exists if it relied on a relationship of trust with the senior for ultimate financial gain. The perpetrator (or, “designing person”) must then have influenced the elder to change the estate plan and favor them. This does not include a legitimate loving relationship between the caregiver and care recipient (which one would expect to be true in the case of an elderly parent and adult child). In other words, to prove undue influence, the prosecution must present solid evidence of conniving deceit used to swindle money & assets. If the alleged perpetrator is an adult child, the evidence could include any of the following:

  • Sweeping, dramatic changes to an estate plan
  • Multiple changes over a short period of time
  • Gradual changes, starting with executing a power of attorney in favor of the perpetrator, and gradually escalating to amending an entire estate plan
  • Disinheriting other children or close family members
  • Sudden inter vivos (during life) cash advances or transfers of assets to the child
  • An adult child with a history of deceitful conduct, perjury, or fraud

If friends or loved ones suspect undue influence, the victim may seek redress through both the criminal and civil justice systems. After contacting proper law enforcement authorities, the victim or their next-of-kin may file a lawsuit to recover the assets.

The lawsuit would need to prove each of the elements above. Keep in mind, courts are hesitant to unravel an estate plan once the writer of the will has passed away, so significant evidence would be required.

A healthy balance

Adult children should protect themselves against allegations of undue influence striking a balanced approach when helping their parents plan for the future. Of course, if the parent seeks them out for advice, kids should feel free to discuss the various estate planning options, particularly if you all can save on taxes during probate. Children must be cautious, however, not to cross the line into too much influence over Mom or Dad, particularly in larger families.

In the end, it takes a considerable evidence to prove a case of undue influence, so those with good intentions shouldn’t be worried. That said, adult children may be best off offering minimal advice when asked—and leave the estate planning to trusted professionals.