Human nature pushes us to procrastinate until we need something. Then we scramble to get it done.
In some areas, this has little impact. With estate planning, the results can be disastrous.
Imagine a spouse living with diminished mental capacity; her spouse has already passed. In this case, the surviving parent may enlist the help of her adult children to manage the finances and help update the estate. While adult children are an asset, they can also provide too much influence and unleash a variety of unwanted legal problems. It’s important to respect a person’s wishes without stepping over the line. Bitterness over a will can divide families and could even lead to legal charges of undue influence.
But how much is too much?
Every state has their own guidance on what undue influence is in the planning process. In most cases, undue influence involves a checklist of items that must be proven by the part that is countering the will. In general, undue influence occurs when:
- The deceased was susceptible to undue influence
- The accused had opportunity to influence the deceased
- The accused was influencing for financial gain
- The accused was in a position of authority or trust
In most cases, the court’s decision will be based on how convincing the evidence is.
Undue influence is more than a simple conversation about Mom’s wishes. It involves a certain level of manipulation, and it usually comes when an adult child takes over the role as primary caregiver. With the adult child being in charge and involved in daily care, they have more trust in the relationship and more opportunity to flex their authority.
Undue influence only exists if it relied on that relationship of trust to further financial gain. It does not include a legitimate loving relationship between a parent and an adult child. There must be evidence of deceit used to swindle money and assets. The courts look for things like:
- Dramatic changes in an estate plan
- A series of changes over a short period of time
- Escalating changes, starting with a power of attorney and migrating to amending the entire estate plan
- Disinheriting other family members
- Sudden cash advances
- A history of deceit or fraud
Adult children should protect themselves against allegations of undue influence by creating a balance between duties. If parents require changes in their estate plans, seek guidance and involve all family members, if possible. Allow mom or dad to take as much responsibility as possible.