What is Undue Influence?

Undue Influence is when someone pressures another in such a way that the person being influenced is not acting by their own free will; they are being coerced into taking a certain action. Undue influence often arises when a friend or family member falls ill.

[ The Sample Matter ]: Mom has been diagnosed with cancer and one of her children, influences mom to change her estate plan so that all of mom’s assets go to that child instead of to the other siblings. The influence was carried out in secret and others don’t know about what has been done, until after mom passes away.

Undue influence is an argument that can be brought up in court to undo what a bad actor has done.
Continuing the above example, mom’s other children can file a petition to have these estate planning actions undone, if the court finds that the other sibling was guilty of undue influence on mom. A will can be thrown out, property transfers can be undone, and the bad actor’s name can be taken off accounts. The other siblings would have to prove that mom was more than just persuaded by another to take a certain action, but that she was coerced.

Coerced: either the influenced person didn’t have the capacity to make the decision, or they were tricked into doing so.

When trying to determine whether Undue Influence has occurred, the court will look at all kinds of evidence, including:

• Does the action contrast recent decisions mom made before she fell ill?

• Are the new estate planning documents in line with previous decisions regarding that property?

• Did the child have authority or control over mom when making the decision?

• Was the child physically involved in carrying out the decision? For example, did the child drive the person to the appointment, arrange for the decision to be carried out, or physically help guide the person’s signature?

• Was the act kept a secret?

• Did the child keep the decision maker from contact from family and friends?

• Was mom in a vulnerable position?

• Had a physician made a determination of capacity?

In many cases, undue influence arises when the decision maker (in this case, mom) lacks capacity. If mom had “Capacity” it would mean that she knew what was happening and understood the full consequences of her decision. However, when someone (particularly seniors) falls ill, or has a disease like dementia, they are in a vulnerable place (mentally & emotionally) and can often be taken advantage of by a family member, because they become unaware of the actions that are being taken or the full effect of what they mean.

Some harsh realities to Estate Planning & Families:

It could be that mom actually favors one child over another. For example, the child is a helpful caretaker. It could also be that mom asked that child to call the lawyer to set the appointment and drive her to that appointment, which in fact, to some, could look like undue influence when in fact, it wasn’t at all.

Unwanted situations like this can arise if the parent didn’t plan in advance, while still healthy and obviously had capacity. Legally Remote, PLLC would most certainly suggest that mom talk to the other children and explain what the estate planning documents say and why one child will receive more. Avoiding such a surprise after mom has died will preserve the unity among the children.

Keep an eye out for undue influence and capacity issues especially when it involves seniors struggling with long-term care, chronic disease, or other life-altering events like divorce. Undue influence can occur with children, family members, friends as well as attorneys, financial advisors, bankers, notaries, and medical personnel.

Keep a mental if you notice one of these:

• Does the decision maker (mom) appear coherent and aware of what is going on?

• Do you see any signs of physical abuse, such as bruises or scrapes?

• Do you see any signs of emotional and/or verbal abuse?

• Do the decision maker’s (mom) actions seem out of the ordinary?

• Has the decision maker become unusually inaccessible by friends or other family members?

• Does the bad actor try to control conversations or visitations by medical or legal professionals?

• Has the bad actor refused to let you speak to the decision maker alone?
  

Undue influence can cause an individual to take actions that they normally wouldn’t. These actions can have adverse consequences on friends and family. It is important to have legal documents in place to best protect yourself from being unduly influenced in the event that your health deteriorates.