Mom Left the House to My Sister…Undue Influence?

In my 30 plus years of being an attorney, I have been asked numerous times by an adult child to re-write mom’s trust, or to create a trust for an “elderly friend”. On many occasions, the new trust would benefit the adult child or “friend”. This is a very dangerous area, and full of potential legal problems.
People often forget that attorneys have a duty to their “client” – which is “mom” or the “elderly friend”. The client (not a third party) must direct the attorney without influence. So, if a third party is prompting an elderly person, or person with early dementia, to have a trust written which benefits that same third party, that action may be construed as “undue influence”. For example, an adult daughter caregiver brings mom to a lawyer to re-write mom’s trust. The new trust would then benefit the caregiving daughter to the exclusion of the other siblings. If this were to happen, the other siblings could pursue an action in court, saying that the caregiver daughter exercised “undue influence” in having mom change her trust.
There is a presumption that undue influence occurred if an interested party can show:
The victim was vulnerable (such as elderly, dependent, etc.);
The influencer appeared to have authority over the victim (such as a family member or caregiver); Actions taken by the influencer (such as convincing mom that the influencer deserves a larger “inheritance”); and
The result of the undue influence resulted in an unfair outcome (the influencer benefits). Estate planning decisions rest solely with the client – and not the family members. It is important to have your living trust reflect your wishes, while you are healthy and of sound mind.
For more information, please visit www.theMcNamaraLawFirm.com or call (661) 287-3260.

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