Avoiding Future Problems

On October 25, 2011, in Uncategorized, by Joseph Trojack

Sometimes older adults need help finding an estate planning attorney.  They might ask one of their children or a close friend for advice or for a referral.  They might need a ride to the attorney’s office or help organizing their assets.  While family and friends are usually willing to help, their good intentions may lead to complications down the road.   Although friends and family are often well-meaning, their involvement with someone else’s estate plan may have the appearance of undue influence to dissatisfied family members.  Undue influence occurs when someone pressures or influences another to such a degree that the person is a “mere puppet” of the influencer.  If a will or trust is a result of undue influence, courts will hold that it is not a valid testamentary instrument.

Courts typically examine several factors to determine whether a will or trust was created through undue influence.  These factors include whether there was (1) an opportunity to exercise undue influence, (2) active participation by the party exercising the influence, (3) a confidential relationship between the person and the party exercising the influence, (4) a disinheritance of those who would have been remembered in the person’s will or trust, (5) a singular benefit to the party exercising the influence, and (6) a person exercising influence or persuasion.

So what do you do when mom and dad ask you for help with their estate plan?  Here are some suggestions:

1. Avoid Participation as Much as Possible. Avoid driving them to appointments or helping them collect information about their property. Do not witness any of the documents they sign. If asked how they should dispose of their property, you should tell them that you can’t give advice on the subject and that they should talk with their attorney. You should not attend meetings about their estate plan, and you should avoid all contact with their attorney, if possible.

2. Do Not Find an Attorney for Them. There are attorney referral services that can refer your parents to an estate planning attorney in their area so it doesn’t look as if you chose their attorney for them.

3. Don’t Ask. Parents may occasionally disclose information about their estate plan, but it is important not to follow-up or ask questions. This gives the appearance of an improper interest in their estate plan.

 There are other steps that can be used if undue influence might be an issue in the future.  An attorney might video tape a couple declaring that the estate plan they created was not the result of anyone’s suggestion or influence.  This may be used as evidence against a charge of undue influence.


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