Undue Influence: When Justice is Due

The scenario is a common one. A child of a recently deceased parent comes into my office, having finally seen the will or trust that his/her parent made or amended just prior to their passing. The client was a loving son or daughter who tended to their mom or dad and tried to be the child that they were raised to be, yet the will or trust doesn’t reflect that loving relationship. In many instances they have been entirely left out of mom or dad’s estate.

For many of these clients, that event is seen by them as an indictment of their worth as a child. It evokes a range of emotions: anger, bitterness, self-doubt, and despair.
Yet there is quite often an explanation for the events that led to the client’s victimization. It is known in the law as “undue influence” .

Undue influence is not an uncommon phenomenon. When people grow older, they become more dependent on others–whether family members, caregivers, friends or professionals–to assist them in managing their health, finances and general well-being. Undue influence can occur where these various persons use these roles as a subtle mechanism for acquiring the right to greater wealth–in the form of part or all of the elder’s estate.

Fortunately, a body of law has sensibly developed to deal with these circumstances.    

In a series of cases decided largely in the last 10 years, Massachusetts courts have held that someone who is a “fiduciary” to a decedent (person who has died) and who has benefited from a transaction involving a trust or estate (e.g. a will or trust or amendment of a will or trust) has the burden of proving that a particular transaction was NOT the product of undue influence.    It represents one of the few areas of our law where the burden of proof actually shifts from the plaintiff to the defendant.

Our courts have stated that there are four considerations present in a case of undue influence:

1.  An unnatural disposition.

2.  Disposition by a person susceptible to undue influence

3.  The transaction is facilitated by a person with an opportunity to exercise undue influence

4.  That person has in used the opportunity to affect the transaction through improper means.

These factors often look more daunting than they really are.    Consider the following example:   A man takes his elderly mother to make a will just weeks before her passing.    Son takes mom to his own lawyer,   who prepares a will leaving everything to the son and cutting out mom’s two other children.   The son has been managing mom’s money for years through the use of joint bank accounts and a power of attorney.    

This presents a plausible case of undue influence,  particularly if one or more of the children who were cut out of the estate had loving, supportive relationships with their mother.     The disposition becomes “unnatural”,  and the son of course used his relationship with his own attorney to engineer the transaction.   Under this scenario the son would have the burden of proving that the transaction was not the product of undue influence.

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