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 should raise suspicions of undue influence.
Undue influence is the excessive persuasion which causes an individual to do something which is contrary to their own unrestricted desire. In Massachusetts, there are four elements in proving an undue influence case: (1) an unnatural disposition made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.
Let’s imagine a scenario which broadly mirrors the fact patterns of many of our fiduciary litigation cases. An elderly parent, Nancy, who needs daily in-home assistance due to a dementia diagnosis, changes her estate plan within a few months of her death. The new estate plan is drastically different from her previous estate plan drafted by her longstanding attorney whereby all assets were divided equally amongst her three children. The new estate plan was drafted by an entirely new attorney and gives all her assets to one daughter, Karen, and almost no valuable assets to her two remaining children. Karen lives with Nancy and provides care to her. Karen is also Nancy’s health care agent, attorney-in-fact, and trustee under the new estate plan. Upon Nancy’s death, her other children are shocked to discover that they have been essentially disinherited from their mother’s estate. Let’s imagine that you are one of the disinherited adult children.
Suspicions may arise when you notice that your parent is favoring one of your siblings in her estate plan. We have also had cases where a neighbor or friend is suddenly favored over all of one’s family members in a new estate plan. This can be known as an unnatural disposition. If a decedent had a long-standing estate plan that consistently had the same beneficiaries, any late-in-life change in beneficiaries or the equality of their proposed distribution leans toward the possibility of an unnatural disposition. In our example, Nancy’s new estate plan heavily favors Karen over her other two children, which may be an unnatural disposition if the reason for the favoritism is not clearly stated in Nancy’s estate plan.
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. In proving 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 to prove this element. In our scenario, we would seek to obtain medical records that confirm that Nancy was suffering from progressive dementia which diminished her capacity and show she was reliant on caregivers to meet her daily needs.
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 her access to visitors, including her own children. Adding to our example, Karen was Nancy’s primary caregiver and moved in with Nancy when her illness progressed. As we see in many cases, Karen prevented her siblings from seeing or visiting Nancy. If they were permitted to visit, it would always be in Karen’s presence.
The final element to prove – that the influencer did in fact use her influence to procure the contested disposition through improper means – is the most important in making a case for undue influence. Often, testimony from the new estate planning attorney is helpful in making this case. For example, if the estate planning attorney testifies that most of the communication in drafting the new estate plan through Karen, this provides evidence of the use of influence. Something we see all too often is that the influencer is in the room with the decedent and her attorney when the documents were executed. An estate planning attorney should always meet with his or her client alone and take notes regarding this conversation prior to executing the documents to prevent the appearance undue influence.
It is important to note whether the influencer was a fiduciary at the time of influence. A fiduciary is someone acting on the behalf of another person. A fiduciary must act in good faith and in the other’s best interests. Often, fiduciaries are guardians, conservators, trustees, or attorneys-in-fact. If the influencer 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.
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. Our attorneys have a proven track record of success in matters such as these, and we are here to help.