Presumption of Undue Influence

Presumption of Undue Influence

Presumption of Undue Influence

A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.

David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.

The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.

London Courts Face Explosion Of Will Contest Cases

Explosion of Will Contest Cases

The evening standard reports that London courts are facing an explosion of will contest cases.

“There has been a huge explosion of inheritance disputes. More people will be aware that they can do something about it when they are cut out of their parents’ will.” “We are seeing an increase in Inheritance Act claims brought by adult children …. claims of this nature will only become more common,”

Ageing Population Cause of Explosion of Will Contest Cases

An ageing population and rising levels of dementia have fueled a sharp rise in will disputes.

“People are living longer and we have a generation of children who are reliant on their parents.”

Some children (and, based on my experience, “friends” and “caretakers”) are taking advantage of the elderly.

The article “warned that a rise in court fees was leading more people to try to represent themselves.” “(T)he end result could be catastrophic for some.” While the court fees are not as high in Texas as they are in the UK, a person trying to represent themselves in a will contest case in Texas may be facing a catastrophe for them and their case.

England Seeing Increase in Will Contest

Increase in Will ContestEngland seeing an increase in will contest, why?

For the same reasons Texas is seeing an increase in will contest. I have previously written on why contesting a will has become more common. You can view that article here. An English law firm, Soosmiths, has an article on their website that discusses the Ministry of Justice statements on the causes of the increase in such cases in England. The increase is as much as 700% over prior years!

English law is different from Texas law but the law firm notes several reasons that I have previously discussed like the change in the family structure and the fact that we are living longer. The English article also talks about self made or do it yourself wills being a cause (more…)

Relationship Poisoning And Undue Influence

History of Undue Influence

Undue influence is one of the harder things to prove in an inheritance dispute. The doctrine of undue influence derives from English courts.  A will contest heard by Sir Francis Bacon as the Lord Chancellor of England in 1617 illustrates common aspects of the process of undue influence which emerged in the context of a will contest.  These aspects include frail health, physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser.

Relationship poisoning and undue influence.

What is relationship poisoning in the context of a will contest? A Texas court held that when a person makes negative remarks about a person’s children and reinterprets historical events in a negative manner, the jury can consider these acts as relationship poisoning. Based on the relationship poisoning, the jury can find undue influence  and the verdict will be upheld. 340 SW 3d 769. While relationship poisoning alone may or may not be sufficient proof of undue influence, if it has occurred it needs to be brought to the attention of the court because it will assist the court in determining if undue influence has occurred.

Undue Influence in Texas

Contesting a Will Because of Undue Influence

Elder Abuse Is Increasing

Elder Abuse Is Increasing

Elder abuse is increasing in Texas.

Elder abuse is often at the hands of those closest. In an article in the Arizona Daily Star by Patrick McNamara, which was published on their website, tucson.com, the paper reported that law enforcement is seeing an increase in elder abuse.

Reason that elder abuse is increasing

As our elderly population grows, law enforcement and prosecutors are seeing an increase in the number of incidents of exploitation and abuse against older people. According to the article, law enforcement has seen a nearly 50 percent increase in elder exploitation reports. Financial crimes are taking a toll on lives and pocketbooks reports Constance Gustke in the New York Times. Trusted caregivers – friends and relatives who offer support and guidance – are often the ones at fault. The article states that older adults are appealing – and vulnerable – targets because they have a lot of money that was saved over the years.

Abuse of senior citizens, both physical and financial, has become a growing problem in all states, including Pennsylvania, and it isn’t expected to abate as that state’s elderly population rises reports Matt Miller on pennlive.com. The Pennsylvania Supreme Court is so concerned that it has created a task force calling for everyone from judges to legislators to family members and the general public to get involved. Because elder abuse is increasing, they made recommendations to require banks and other financial institutions to report suspected cases of financial exploitation of seniors along with a proposed expansion of existing law to make it impossible for someone convicted of abusing a senior citizen to later benefit from that victim’s estate.

I have an article on this blog about a case where an adult daughter left her elderly father in the care of a longtime friend while she took a short vacation. In one week, the friend married the father, started transferring assets into joint accounts, and named herself his pension beneficiary. The children learned of the marriage a month later. When they confronted their father, he recalled nothing about it.

Elder abuse is increasing and undue influence is one way bad guys use to abuse the elderly.

Remedies for the victims and their family

What can be done if a family has had an elderly loved one fall victim to abuse? Often when a family learns of elder abuse, it is too late. The bad guy has taken the money and it cannot be recovered. Close monitoring of those who are around the elderly helps but sometimes that is not possible. What if mom or Aunt Sally or Uncle Joe lives in the next city or next county or next state? Sometimes the abuser is a child or other close relative. Since close monitoring is not always possible, a regular review of the elder person’s finances may disclose transactions that need to be pursued. If the abuser has gotten the elder person to write a new will, this may not be discovered until after the elder person dies. The only remedy then is a will contest.

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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.

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