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GIFTS, WILLS AND UNDUE INFLUENCE

By: Jonathan L. Mate

We are all familiar with the following common scenario: A wealthy aged widow with substantial net worth, health problems, and at least two children with many grandchildren goes to live with one of her children, in this example, her daughter.  During this period of her life, the daughter takes care of her, manages her finances and helps her with all aspects of her life.  Sometimes the daughter may make it difficult for other children to see their mother or grandmother.  At some point in time, the daughter takes her mother to her own attorney to prepare a new will and power of attorney. The daughter then arranges, with or without the attorney’s aid, to make substantial gifts to herself and her children by establishing a joint bank or joint stock brokerage account or direct gifts.  After the widow dies, the other children claim foul and sue.

The basic legal question is whether or not the gifts or the will are tainted by “undue influence.”  Undue influence has been defined as mental, moral, or physical exertion, usually accompanied by diminished mental capacity which has destroyed the free will of another by preventing that person from following the dictates of his own mind and accepting instead the domination and influence of another.  Thus, the essential question is always: Did the widow make the gifts and her will of her own free choice or was she forced to do so by the domination and influence of her daughter?  Every case will turn on its own special facts and circumstances.

As a general rule, the person who is filing the suit has the burden of proving every aspect of his or her claim.  In a case of undue influence, however, if the favored person, in our case, the daughter, had a confidential relationship with her mother and there are “suspicious circumstances,” then the court will shift the burden of proof to the daughter to prove that the gifts and will were done freely and voluntarily, and without undue influence.

A “confidential relationship” exists where one person places trust in another because of his or her weakness or dependence, or where such trust arises more naturally, such as the relationship between an attorney and a client.  In our example, the infirmity of the widow and the control of the daughter over her finances would certainly indicate a confidential relationship.

One suspicious circumstance would be a material change in a long-held testamentary plan.  Thus, if the widow’s prior wills treated her children equally and she changed them after she lived with her daughter, this would probably be considered suspicious.   It would also be highly suspicious for the widow to make a new will with an attorney chosen by her daughter.  It may be unethical for the attorney and, in some cases, ultimately ineffective, because so doing creates this suspicious circumstance which, when coupled with a confidential relationship, shifts the burden of proof to the daughter to show the absence of undue influence.

Not all influence is undue.  We are all familiar with the case of Anna Nicole Smith where an 80-year-old man married a 20-year-old dancer. After three or four years of marriage, he left substantially all of his millions to his wife.  The children from a prior marriage sued and, after the settlement, his widow still received a very substantial portion of his estate.  The reason, as it has often been said, is that no influence from a wife (or a wife to be) can be undue.

When you read these cases or newspaper accounts it is easy to take the moral high ground and to say that one person or another acted heinously.  However, in the great majority of cases each party will claim and believe that he or she acted entirely properly and, if benefited by the decedent’s gifts or will, deserved every penny.  If a person was denied an expected inheritance, he or she will usually cry “foul!”

The argument follows the money in most cases, and not all people are liars or cheats.  It is human nature to believe you are right and, when in conflict, that your adversary is wrong.  When these cases are ultimately resolved in court, a judge will conclude to the best of his or her ability who is right and who is wrong following the rules outlined above.

This publication is intended for general information purposes only and does not constitute legal advice. The reader should consult legal counsel to determine how the law may apply to specific situations.