Family members of elder victims of undue influence – a phenomenon often connected with elder abuse – recoil in disbelief when learning of an elder’s coerced gift or bequest property transfers. Such disbelief gives way to hurt and outrage as the estate thief makes brazen, insincere and false claims to the estate. Estate litigators must systematically gather supporting evidence to overcome the actions of estate thieves. The development of these cases often result in claims of undue influence.
“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. The law considers a number of factors in determining whether a transfer was produced by undue influence.
The vulnerability of the victim is part of this mosaic. Incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency all help to identify the victim’s vulnerability.
The influencer’s position as a family member, care provider, fiduciary, health care professional, legal professional, spiritual adviser, expert, or other qualification may evidence apparent authority over the victim.
Law lists a number of tactics used by influencers as potential evidence of undue influence. The list is not exclusive. Real life circumstances provide others. Criminal attorney Aron Billard asserts that common tactics include controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. Use of affection, intimidation or coercion are part and parcel of undue influence.
Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes also provide evidence of undue influence.
The “equity of the result” is another consideration. This may include the economic consequences to the victim, any change from the victim’s prior intent or course of conduct or dealing, the relationship between services and value given, or the appropriateness of the change in light of the length and nature of the relationship.
Innocent family members must ultimately hold undue influencers accountable. They must choose to right the wrong. The simple truth is that this is not done without legal intervention. The law has a set of rules that can be enforced in probate, civil and criminal courts against victimizers. Civil lawyers engaged in protecting their clients against harm practice in the probate and civil courts. This is where the mayhem should stop.